The Role of Precedents in Mixed Jurisdictions: A Comparative Analysis of Louisiana and the Philippines Ryan McGonigle Readers are reminded that this work is protected by copyright. While they are free to use the ideas expressed in it, they may not copy, distribute or publish the work or part of it, in any form, printed, electronic or otherwise, except for reasonable quoting, clearly indicating the source. Readers are permitted to make copies, electronically or printed, for personal and classroom use. Abstract The modern trend of convergence between the legal systems of the civil- and common-law traditions offers a unique opportunity for mixed legal jurisdictions such as Louisiana and the Philippines. The flexibility of mixed jurisdictions is found in their ability to act as a ‘doctrinal sieve,’ straining out the inherent weaknesses of both parent traditions. This article aims at discovering the proper role of precedent (judge-made law) within the mixed or hybrid legal systems of Louisiana and the Philippines. By first setting out the historical and specific legal experiences of both jurisdictions, the question of whether the civilian concept of jurisprudence constante or the common-law theory of stare decisis obtains in our paradigmatic examples is answered, leaving room for the mixed category sui generis. By viewing our mixed jurisdictions through a comparative lens, this paper also presents comparatists with the opportunity to bypass stumbling blocks and legal chauvinism and obtain vrai rapprochement. I. Introduction The question of whether the common-law doctrine of stare decisis obtains in Louisiana has been an oft-debated theme recurring throughout the nearly two centuries of Louisiana statehood. Since the beginning of the 20th century, however, a ‘bright-line rule’ on the role of precedent has been hard to draw. The problem has its roots in the interpretation of the proper role of precedent within a Code-based system that is, at once, a progeny of the great Romanistic traditions of France and Spain while being a part of the common-law whole that is the United States. Louisiana is, as one commentator figuratively expressed it, ‘a civil law island in a common law sea.’ Culturally juxtaposed between the world’s two greatest legal traditions - the civil law and the common law - Louisiana’s genius lies in its ability to act as a ‘doctrinal sieve,’ straining harsher elements inherent in both traditions and preserving those that suit its needs. This flexibility is the main characteristic of ‘mixed’ or ‘hybrid’ jurisdictions of which Louisiana and the Philippines form a part. In the Philippines, however, the question of whether the doctrine of stare decisis obtains was not met with the same level of controversy, as had been the case in Louisiana. Using comparative legal analysis as a backdrop for this paper, the role of precedent in the mixed jurisdictions of Louisiana and the Philippines will be contrasted with the Anglo-American doctrine of stare decisis. In this paper, I shall attempt to place our ‘mixed’ jurisdictions into their proper category, seeking answers to a particularly difficult question that underlies the purpose of my thesis: ‘Does the common-law doctrine of stare decisis obtain here or do we adhere to the civilian concept of jurisprudence?’ The answer to this elusive question may be neither positive nor negative - leaving room for a third category: ‘mixed jurisdiction sui generis.’ Part II traces the development of the Louisiana theory of precedents with a focus on the jurisprudence of the Supreme Court of Louisiana. The doctrine of stare decisis as it is known in Louisiana’s sister states will be distinguished from the civilian theory of jurisprudence constante. In addition, the current renaissance of the civilian tradition in Louisiana will be highlighted and what I call ‘cultural variables’ will be brought to the forefront in order to explain why Louisiana has adhered to a stricter civilian interpretation of the role of precedent. Part III introduces the mixed jurisdiction of the Philippines. It begins by setting out the historical course that led Philippine jurists to adopt the common-law doctrine of stare decisis, focusing on the case-law of the Philippine Supreme Court. The same cultural variables discussed in Part II will be applied to the situation in the Philippines. Lastly, Part IV concludes this paper with a general discussion on how mixed jurisdictions offer legal scholars and practitioners of both legal traditions greater room for ‘rapprochement.’ Today, the trend has been one of convergence between legal systems. Unfortunately, however, there are many obstacles to surmount before harmonization can be achieved - least of which is legal chauvinism that proponents of both systems seem to find first in asking: ‘Whose system is better?’ It is not that one system is better than the other but rather that they are merely different; the hope is that these differences will foster rapprochement. First beginning with mixed jurisdictions such as Louisiana and the Philippines, and recognizing that they are indeed ‘modèles vivants de droit comparé,’ perhaps obstacles can be removed on the road toward the harmonization of divergent legal systems. II. The historical development of Louisiana’s theory of precedents If we could look at a pure civilian system in a vacuum and analyze it for its parts, we would see that it was comprised of only two components - legislation and custom. According to pure civilian theory, judicial precedents are not considered to be a source of law because the ‘legislative function is entrusted to the legislature and the people exclusively.’ This theory is paralleled in Article I of the Louisiana Civil Code, which declares: ‘The sources of law are legislation and custom.’ According to John Henry Merryman, this was so because of state positivism. In his book, The Civil Law Tradition, he writes: . . . state positivism, as expressed in the dogma of the absolute external and internal sovereignty of the state, led to a state monopoly on lawmaking. Revolutionary emphasis on the strict separation of powers demanded that only specifically designated organs of the legislative and judicial powers of government were different in kind; in order to prevent abuse, they had to be very sharply separated from each other. Strict separation of powers was a direct reaction to the French judiciary’s abuse of power in pre-Revolutionary France. During the ancien régime, the French judiciary was possessed of seemingly unfettered discretion to adjudicate cases as they saw fit. The French regional high courts, known as Les Parlements, had the authority ‘not only to judge cases, but also to promulgate regulations, known as arrêts de règlement,’ which had the force of law. Hence the origin of the old French proverb: ‘Dieu nous garde de l’équité de parlements.’ In the words of Professor Palmer, the existence of the adage itself ‘still communicates to us something of the suffering of the people at the hands of judges who abused the proper functioning of a court.’ Prior to the French Revolution, it was often said that ‘the law was so confused that nobody, including the judges, was able to know it with certainty, and that they were at the mercy of the courts.’ As a result, safeguards were sought and ‘appeal was made very early to the idea that the law should be written, and written in clear and ordinary language, so that everybody would know his rights and that no discretion should be left to the judge.’ The result was Article 5 of the Code Napoléon, which proscribes the use of precedents by judges: ‘Judges are forbidden, when giving judgment in the cases which are brought before them, to lay down general rules of conduct or decide a case by holding it was governed by a previous decision.’ In other words, precedent was not considered to be a source of law. By the time of the Article’s enactment in 1804, Louisiana was no longer a possession of France, so the question remained whether Louisiana jurisprudence would follow the Revolutionary model or the Anglo-American model. It was well known that the people of Louisiana were not pleased with the American judicial system or the American immigrants in general. The Americans viewed the French inhabitants of Louisiana with equal contempt. The territory’s first governor, William C.C. Claiborne, wrote President Jefferson that Louisianans were ‘ignoramuses, and . . . childish . . . incapable of seeing the advantages of American laws.’ The elected representatives of Louisiana, however, saw the advantages of the laws that were in existence before the Americans assumed control. During these tumultuous times, they stood as a voice of reason: ‘The most inestimable benefit for a people is the preservation of its laws, usages, and habits. It is only such preservation that can soften the sudden transition from one government to another and it is by having consideration for that natural attachment that even the heaviest yoke becomes endurable.’ The first attempt at reason came in 1806, when the Legislature of the Territory of Orleans convened and declared that ‘the Territory of Orleans should be governed by Roman and Spanish civil law and by the ordinances and decrees that previously applied in Louisiana.’ Initially, Governor Claiborne vetoed this legislation and this sparked protests within and without the Legislature. Notwithstanding the veto, the move was seen as pragmatic because of the confused, uncodified state of Spanish law that had been in force in Louisiana at the time of the Purchase. In particular, there were ‘six different compilations of Spanish laws . . . and it was unclear which of over 20,000 individual laws of Spain applied in the territory.’ This state of confusion prompted both sides to seek greater compromise, which had culminated in the adoption, on March 31, 1808, of a work entitled ‘A Digest of the Civil Laws now in Force in the Territory of Orleans, with Alterations and Amendments Adapted to its Present form of Government.’ This Digest, known as the Louisiana Civil Code of 1808, was inspired largely by the French projet du gouvernement of 1800, better known as the Code Napoléon. In particular, approximately seventy percent of the Code’s 2,160 Articles, or 1,516 articles, was based upon the French Code. This being said, it is surprising to note that Louisiana never enacted a codal provision corresponding to Article 5 of the Code Napoléon relating to the prohibition of judge-made law (precedent). Considering that the French Civil Code was adopted and promulgated four years prior to the Louisiana Civil Code of 1808, and in light of the ‘close ties then existing with the old country,’ there must have been ‘ample opportunity for [the Code] to have found its way to Louisiana.’ The absence of a provision prohibitive of judge-made law, however, should not be interpreted as an attempt by the redactors of the Code to adopt the Anglo-American common-law doctrine of stare decisis. On March 24, 1822, Messieurs Edward Livingston, Louis Moreau-Lislet, and Pierre Derbigny were commissioned by the Louisiana Legislature to ‘revise the civil code by amending the same in such a manner as they will deem advisable.’ A year later, in a report to the Louisiana Senate, these esteemed jurisconsults wrote about the proper role of judges and, in doing so, showed their contempt for precedent as a source of law. They wrote: [W]hat is the true meaning of the Law when it is doubtful; to decide how it applies to facts when they are legally ascertained is the proper office of the Judge - The exercise of his discretion is confined to these, which are called CASES OF CONSTRUCTION: in all other he has none, he is but the organ for giving voice, and utterance, and effect, to that which the Legislative branch has decreed. In cases where there is no Law, according to strict principles he can neither pronounce nor expound, nor apply it. Governments under which more is required from, or permitted to, the Magistrate are vicious because they confound Legislative power with Judicial duties, and permit their exercise in the worst possible shape, by creating the rule, after the case has arisen to which it is applied. This is a vice inherent in the Jurisprudence of all nations governed wholly, or in part, as England is by unwritten Laws, or such as can only be collected from decisions. The Louisiana Civil Code of 1825 was printed in French and English, and the redactors of the Code drew inspiration from the Code Napoléon as well as French doctrine and jurisprudence. The French version of Article I of the Code of 1825 put the matter to rest when it declared that ‘[l]a loi est une declaration solemnelle de la volonté législative.’ Thus, without expressly declaring that precedent is not law along the lines of Article 5 of the Code Napoléon, the redactors of the Louisiana Civil Code came back within the ambit of the French revolutionary model. That is to say, although it may seem that the judge must decide the case, the decision itself is not to be considered law. The opposite is true of the common law. To the student of the common law, the law is created and molded by judges, and legislation is viewed as ‘serving a kind of supplementary function.’ Consequently, it can be said that the common law has its fundamental basis on the idea of precedent or stare decisis. The rationale for this rule is consistency. According to Zander, one of the ‘fundamental characteristics of law is the objective that like cases should be treated alike.’ It is therefore rational that, all things being equal, ‘one court should follow the decision of another where the facts appear to be similar.’ The greatest mind of the common law, Sir Edward Coke in his Institutes of the Laws of England, opined: Nihil quod est contra rationem est licitem; for reason is the life of the law, nay the common law itselfe is nothing else but reason; which is understood of an artificiall perfection of reason, gotten by long study, observation, and experience, and not of every man’s naturall reason; for, Nemo nascitur artifex. This legall reason est summa ratio. And therefore if all the reason that is dispersed into so many severall [sic] heads, were united into one, yet could he not make such a law as the law in England is. Moving several hundred years to the present, reason still requires that, as one commentator put it, ‘similar cases be understood and dealt with similarity. Otherwise nothing makes sense. In order to understand one another and reason accurately we must be consistent. So if law is to be a rational (rather than irrational and arbitrary) process, judicial decisions must be consistent with one another. The pragmatic ground for the rule of precedent is predictability: Lawyers and citizens want to be able to assess their future behavior in terms of current decisions of the courts.’ Civilian lawyers and citizens also want predictability but they have ‘felt the need [for it] less keenly because of the background of rules provided first by Roman law and codified custom, and later by the codes of the Napoleonic era.’ Predictability, even in a pure civilian system, however, can be achieved by the use of precedents. According to Justice Barham of the Louisiana Supreme Court, jurisprudence is a major source of law in Louisiana. He writes: Under our Code an through the historical civilian tradition, jurisprudence is not a major source of law, yet it has been and it remains such in reality. Possibly the belief in jurisprudence as a primary source of law is so strongly embedded in the minds of many of the judiciary and the practicing bar of Louisiana because our civil law system coexists in a nation with states which because of their common law heritage so regard jurisprudence. Even if our bar really believes that legislation is the primary source of law, it practices under the principle that jurisprudence is a major source of law. Lawyers often only perfunctorily examine legislative expression before they turn for final authority to the jurisprudence to resolve the legal question posed by their clients’ cases. When the court asks the lawyer in argument to give the authority for a point which he advocates, the court probably expects a case citation even when there is positive codal or statutory authority. As a result of the pressure under which we perform our various roles in our legal system, there has been a tendency to stray from strict civilian methods and concepts. Even if the tendency has been ‘to stray from strict civilian methods’ as Justice Barham put it, the common-law doctrine of stare decisis has no place in the jurisprudence of Louisiana. Scholars familiar with both traditions, however, have not always agreed upon this statement. In 1937, Professor Gordon Ireland authored a controversial Article entitled Louisiana’s Legal System Reappraised, which broadly declared that ‘Louisiana is today a common law State,’ based in part on a misconception of the doctrine of stare decisis. At first glance, the doctrines of stare decisis and jurisprudence constante appear quite similar, but ‘the difference between them is one of the chief things which distinguishes the two great systems of law.’ According to Professors Daggett, Dainow, Hébert, and McMahon, who wrote the famed response to Professor Ireland entitled A Reappraisal Appraised: A Brief for the Civil Law of Louisiana, there are two fundamental differences between the legal doctrines: The two most important differences . . . between the doctrine of jurisprudence constante and the rule of stare decisis, are: (1) a single case affords a sufficient foundation for the latter, while a series of adjudicated cases all in accord forms the predicate of the former; and (2) case law in civilian jurisdictions is merely law de facto, while under the common law technique it is law de jure. In Quaker Realty Company v. Labasse, the Louisiana Supreme Court held that ‘only seldom can a single decision serve as a basis for stare decisis . . . never where opposed to previous decisions, and especially where such previous decisions are overruled without being referred to, as if having escaped altogether the attention of the court.’ The use of the words stare decisis, as noted above, has caused much uncertainty in the state of the law. To resolve uncertainty, a change of terminology was in order. Today, civilian doctrine on precedents is Louisiana is referred to as jurisprudence constante. The change of terminology, however, did not alter the theory behind the doctrine. The court in Lagrange v. Barré, as far back as 1845, knew how to apply the civilian interpretation of jurisprudence. Justice Simon, writing for the court, held: ‘[A]s we have often said, it requires more than one decision to establish the jurisprudence of a country, particularly when, in a solitary one, the point in controversy does not appear to have been thoroughly investigated and examined.’ More than thirty years earlier, in 1813, the Louisiana Supreme Court decided Agnes v. Judice, where it was held that common-law terms introduced into the courts of Louisiana ‘ought to be considered rather as a translation of the name formerly used than as emanations from the English jurisprudence and their adoption as words could not be considered as having introduced the English practice itself.’ Reverting to the French term as the learned scholars in A Reappraisal Appraised: A Brief for the Civil Law of Louisiana had done was the first step towards reclaiming a threatened French-civilian heritage that had been in decline since the late 1800s. The precipitous decline of the French legal and cultural heritage in Louisiana began with the Constitution of 1845. According to Roger Ward, the debates over the 1845 Constitution were conducted in an ethnically charged atmosphere. He states: French-Louisianian delegates to the convention no longer assumed that their language would continue to thrive in the State’s judicial and legislative bodies. On the contrary, French-speaking delegates were not na?ve: they realized that the English language was a cancer growing on their mother tongue. To fight the malignancy, they needed to gain official constitutional protection for the French language. The debates were spearheaded by Bernard Marigny, a francophone senator from New Orleans. Senator Marigny proffered a resolution to be included in the Constitution to the effect that anyone had a right to address members of the Legislature in either language. The resolution passed but not without some controversy. Anglophone Louisianian delegates objected on the ground that the use of French would be too burdensome to the Legislature’s English-speaking members. Senator Marigny and the francophone delegates responded in turn, accusing the anglophone members of the Legislature of seeking to impose the common law upon Louisiana. In the debates, Marigny stated: ‘The hostility to the French language is stimulated by the design to abrogate our civil system of law . . . They have supremacy in both houses of the legislature. I know that the Anglo-Saxon race are [sic] the most numerous, and therefore the strongest. We are yet to learn whether they will abuse the possession of numerical force to overwhelm the Franco-American population.’ That answer would come in the form of two new constitutions - the Constitutions of 1864 and 1868. In the former, the Louisiana Legislature overturned the provision put forth by Senator Marigny twenty years earlier. In the latter, the Legislature provided that ‘the laws, published records and judicial and legislative proceedings of the State . . . be promulgated and preserved in the English language; and no laws shall require judicial process to be issued in any other than the English language.’ This decline would only begin to retrocede in 1937 with A Reappraisal Appraised: A Brief for the Civil Law of Louisiana. Since then, however, civilian proponents would strive to undertake measures to reclaim their civilian cultural and legal heritage. Writing in 1955, John H. Tucker, Jr., in his article The Code and the Common Law in Louisiana, argued that Louisiana was ‘forced by the complexity of its legal inheritance to exercise [a certain] selectivity or eclecticism’, which included assimilating certain areas of the common law into Louisiana’s legal institutions. According to Tucker, however, ‘the Civil Code of Louisiana had been developed by legislation, doctrine and jurisprudence concurrently with some statutory adaptations of the common law of its sister states and of England on a variety of subjects mostly beyond the scope of the Civil Code.’ In his article, Tucker also refuted Professor Ireland’s claim that Louisiana was a common-law state. Tucker argued that ‘[t]he effect of judicial precedent cannot be accepted as a safe criterion by which to evaluate the effect of the common law on the civil law of Louisiana as contained in its civil code.’ Citing the fact that ‘[t]he essential difference between the civil and the common law lies in the generating force of authority,’ Tucker then contrasted the weight of legislation (civil law) against that of decisions of the court (common law). He pointed out that ‘[a] code is not intended to provide for every contingency that might arise’ and that a code is rather ‘a statement of general principles that are to be applied by deduction or analogy to particular cases.’ To prove his point, Tucker stated: ‘It is the function of courts in the common law jurisdictions to make the law. In the civil law the function of the court is one of interpretation.’ In order to make his thesis ‘fool-proof,’ Tucker enumerated several reasons why Professor Ireland’s thesis is incorrect. First of all, he reiterated Professor Ireland’s colleagues’ claim that ‘if there is any subject of Louisiana law to which the rule of stare decisis does not apply, it is the subject of stare decisis itself.’ Furthermore, Tucker pointed out that stare decisis advocates in Louisiana can be found more often than not in the dissenting opinions of judges, showing that ‘the doctrine of stare decisis has been honored more in the breach than in the observance.’ Tucker then stated emphatically that the ‘Louisiana doctrine of stare decisis is a myth’ and that the Louisiana Supreme Court had ‘never adopted stare decisis, and whatever chances it had of creeping into our system have been reduced to the vanishing point by the passage of time.’ Concluding, as did Professors Daggett, Dainow, Hébert and McMahon, Tucker argued that: ‘Our courts have always followed, and show every disposition to continue to follow, the essentially civilian judicial technique of never letting today become either the slave of yesterday or the tyrant of tomorrow.’ Outside of the courts, however, there was a Franco-Louisianian renaissance occurring in the late 1960s and early 1970s, through which ‘[p]ride in French heritage thrived and there was a growing movement to reintroduce the French language to Louisiana.’ The end result was Act 409 of 1968, establishing the Council for the Development of Louisiana-French, known better as its acronym, CODOFIL. Under the Act, the Governor is ‘authorized to establish the Council for the Development of Louisiana-French, said agency to consist of no more than fifty (50) members and including a chairman appointed by the Governor from names recommended to him by legislators, and said Council is empowered to do any and all things necessary to accomplish the development, utilization and preservation of the French language as found in the State of Louisiana for the cultural, economic and tourist benefit of the State.’ Act 409 had done what 165 years of statehood could not: essentially, ‘[it] guaranteed . . . that all Louisianians attending public schools would have an opportunity to be exposed to French language and culture.’ Compelled by the increased interest in the French language, francophone and francophile legislators alike pushed for constitutional recognition and protection of the language. Their aims, however, fell short of the mark but they were able to secure ‘the right of the people to preserve, foster, and promote their respective historic, linguistic and cultural origins.’ Back within the courts and the universities, the cause célèbre was the Civil Code and its grand French civilian tradition. In his article, A Renaissance of the Civilian Tradition in Louisiana, Justice Barham enumerated five factors that contributed to the civilian renaissance in Louisiana. They were: (1) the increasing enrollment of students in Louisiana law schools that required able professors conversant in civil-law and common-law doctrine; (2) the proliferation of the civil-law doctrine in the English language through translations sponsored by the Louisiana Law Review; (3) the efforts of the Louisiana State Law Institute; (4) the contributions of the Institute of Civil Law Studies at Louisiana State University; and (5) the inclusion into the first-year curriculum of an introductory course in the civil law. While Barham’s five factors all are indicative of the civilian renaissance in Louisiana and its continued vibrancy, there are other factors that prove that Louisiana is an evolving civilian system sui generis. First, despite the renewed interest in the role of precedent in Louisiana, ‘there is little support in the Louisiana bench and bar for the civilian theory that the role of judges is to decide cases only, leaving doctrinal development to the scholarly writers.’ The necessity of earning a living by the practice of law has to be balanced with the desire to keep a vibrant civilian tradition. According to Barham, ‘by teaching law students how to be winning advocates, and by making quick judicial decisions to keep up with an ever-increasing caseload has made it expedient for the lawyer, the teacher, and the judge to adopt methods and give answers which, if they do not detract from the civil law tradition, at least do not support it.’ These necessities have made Louisiana what it is today, a civil-law system sui generis. III. The Philippine doctrine of stare decisis The discovery of the Philippines by Magellan on March 16, 1521, heralded a new era in the history of Philippine jurisprudence. The Spanish colonists brought with them a Romanistic system of laws, which mixed with the Malay customary laws that were utilized by the Filipino people in their everyday affairs. After 377 years of Spanish domination, the ‘Pearl of the Orient Seas’ found itself with a new colonial master, the United States. The victory of Admiral George Dewey in the battle of Manila Bay on May 1, 1898, and the formal transfer of sovereignty over the Philippine Islands in the Treaty of Paris, transformed ‘the Philippine legal system from its traditional Spanish civil law orientation, into one patterned after Anglo-American juridical principles.’ According to Professor Villanueva, the merger of the two greatest legal traditions in the Philippines gave the legal system great ‘elasticity and progressiveness.’ This progress came in the form of the common-law doctrine of stare decisis. In the mixed jurisdiction of the Philippines, the main sources of law are legislation, precedent, and custom. In typical civilian fashion, legislation is the only source of law that is absolutely binding. However, in the words of one commentator, ‘the influence of Anglo-American law has not been wholly lost on us and we are willing to concede that the judges do their bit in building up the mosaic of the law.’ But where does the Philippines stand on the spectrum of precedents - towards the civil law, the common law or is it properly within its own ambit? In Alzua and Arnalot v. Johnson, the Philippine Supreme Court, in holding that a rule recognized and applied in the common-law courts of America and England did not apply in the Philippines, said: [W]hile it is true that the body of the Common Law as known to Anglo-American jurisprudence is not in force in these Islands, ‘nor are the doctrines derived therefrom binding upon our courts, save only in so far as they are founded on sound principles applicable to local conditions, and are not in conflict with existing law’ (U.S. vs. Cuna, 12 Phil., 241); nevertheless many of the rules, principles, and doctrines of the Common Law have, to all intents and purposes, been imported into this jurisdiction, as a result of the enactment of new laws and the organization and establishment of new institutions by the Congress of the United States or under its authority; for it will be found that many of these laws can only be construed and applied with the aid of the Common Law from which they are derived, and that to breathe the breath of life into many of the institutions introduced into these Islands under American sovereignty recourse must be had to the rules, principles, and doctrines of the Common Law under whose protection aegis the prototypes of these institutions had their birth. In United States v. De Guzman, the Philippine Supreme Court reiterated its position as per the importation of common-law doctrine: We have frequently held that, for the proper construction and application of the terms and provisions of legislative enactments which have been borrowed from or modeled upon Anglo-American precedents, it is proper and ofttimes essential to review the legislative history of such enactments and to find an authoritative guide for their interpretation and application in the decisions of American and English courts of last resort construing and applying similar legislation in those countries. In United States v. Abiog and Abiog, Justice Malcolm of the Supreme Court introduced the concept of a Philippine common law. In the instant case, the Court dealt with a homicide where two brothers, acting independently and separately of each other, inflicted mortal wounds on the victim who had insulted one of the former. Justice Malcolm was faced with a problem - if he followed the common law he could end up with an inequitable result. Citing People v. Woody, Justice Malcolm noted the common-law rule: ‘If two or more are acting independently, and the actual perpetrator of the homicide cannot be identified, all must be acquitted, although it is certain that one of them was guilty.’ Choosing not to adopt the common-law position, Malcolm writes: Two reasons impel us not to follow blindly the authorities just cited. In the first place, it is believed that the facts in the present instance can be distinguished from these American Cases. However this may be, there is another doctrine embodied in our jurisprudence which reaches the same result. To elucidate - the principles of the Anglo American Common Law are for the Philippines, just as they were for the State of Louisiana and just as the English common law was for the United States, of far-reaching influence. The common law is entitled to our deepest respect and reverence. The courts are constantly guided by its doctrines. Yet it is true as heretofore expressly decided by this court that - ‘neither English nor American common law is in force in these Islands, nor are the doctrines derived therefrom binding upon our courts, save only in so far as they are founded on sound principles applicable to local conditions, and are not in conflict with existing law.’ (U.S. vs. Cuna [1908], 12 Phil., 241). What Malcolm had in mind was a blend of all three systems: What we really have, if we were not too modest to claim it, is a Philippine common law influenced by the English and American common law, the derecho común of Spain, and the customary law of the Islands and builded [sic] on a case law of precedents. Into this Philippine common law, we can properly refuse to take a rule which would estop other courses of reasoning and which, because of a lack of legal ingenuity, would permit men guilty of homicide to escape on a technicality. With the departure of the Americans and the establishment of an independent Philippine Republic on July 4, 1946, one could have expected Anglo-American legal influence to have dropped off dramatically. This, however, was not the case. After independence, one commentator noted: Today, we stand as an independent republic, but the reception of American rules into our law continues unabated. This holds true both as to its substance and to its methods. Much of the legislation of the past fourteen years is undisputedly of American origin. Our law on labor relations, on social insurance, on taxation, on banking and currency, to mention the more important examples, is local enactment of corresponding American statutes, with adaptations here and there to fit our circumstances. So pervasive is American influence as to have penetrated the last strong-hold [sic] of civil law in this country. Our Civil Code, as revised, now embodies the common law principles of trusts and estoppel, as well as the latest American systematization of the law on sales and partnership. Speaking about the reliance upon precedent in the Philippines, the same commentator noted: Our reliance on precedent, our insistence on actual controversies and our recognition of such doctrines as the law of the case and res judicata, betray how deeply are our tribunals steeped in American judicial habits. We might as well mention also the propensity of our local courts to be persuaded by the pronouncement of American appellate courts. The official theory is that American decisions, being expressions of foreign law, are not binding on our courts, but our judges, nevertheless, behave as though they were. Many an argument has been able to push through a point across the threshold of judicial belief because it is buttressed with citation of American authorities. . . . So pervasive, indeed, has been the impact of American influence upon our legal system that an American jurist who surveys its content would find most of it as familiar ground. To typify the extent of the common law’s influence upon the legal traditions of the archipelago, we need not look any further than Article VIII of the Civil Code of the Philippines, the codification of stare decisis. Article VIII declares: ‘Judicial decisions applying or interpreting the laws or Constitution shall form a part of the legal system of the Philippines.’ However, according to Professor Villanueva, ‘in its theory of judicial precedents,’ the Philippine courts have ‘blended together the underlying philosophies of the principle of stare decisis of the common-law system, and the evolving principles of judicial precedents of the civil law systems.’ A good example of the Philippine Supreme Court applying its own theory arose shortly after Independence in the case of Tan Chong v. Secretary of Labor. In Tan Chong, the Court dealt with an application for naturalization of a native of the Philippines, born of a Chinese father and a Filipino mother. According to the laws that were in force at the time of the appellant’s birth, however, this native-born Filipino was not considered a citizen of the Philippines. Prior to Independence, the jurisprudence favored the application of the principle of jus soli and the rule of law in the case of United States v. Wong Kim Ark, that is, a person born in the United States of Chinese parentage and domiciled therein is a citizen of the United States. The Philippine Supreme Court adhered to the rule in Wong Kim Ark until the time of Independence, when the respondent in this case, the Secretary of Labor, urged that reliance upon the principle of jus soli be abandoned. Declaring that the petitioner in Tan Chong was born of alien parentage and was not a citizen of the Philippines, the Court as per Padilla, J., held: While birth is an important element of citizenship, it alone does not make a person a citizen of the country of his birth. . . . Citizenship is a political status. The citizen must be proud of his citizenship. He should treasure and cherish it. In the language of Mr. Chief Justice Fuller, ‘the question of citizenship in a nation is of the most vital importance. It is a precious heritage, as well as an inestimable acquisition.’ (U.S. vs. Wong Kim Ark, supra.) Citizenship, the main integrate element of which is allegiance, must not be taken lightly. Dual allegiance must be discouraged and prevented. But the application of the principle of jus soli to persons born in this country of alien parentage would encourage dual allegiance which in the long run would be detrimental to both countries of which such persons might claim to be citizens. The principle of stare decisis does not mean blind adherence to precedents. The doctrine or rule laid down, which has been followed for years, no matter how sound it may be, if found to be contrary to law, must be abandoned. The principle of stare decisis does not and should not apply when there is conflict between the precedent and the law. The duty of this Court is to forsake and abandon any doctrine or rule found to be in violation of the law in force. One could say that the Philippine Supreme Court’s reversal of jus soli suited its needs at a time when the young Philippine Republic needed stability. Having a segment of their so-called ‘native’ population, with questionable or divided loyalties, could be a dangerous prospect. In order to fashion their own definition of stare decisis, the Philippine Court searched for a solution that would be flexible enough so that when ‘in the light of changing conditions, a rule has ceased to be of benefit and use to society, the courts may rightly depart from it.’ For over four centuries, the Filipino people were not able to create their own legal structures and theories. Speaking on the Filipino people’s inability to fashion their own legal thinking, one commentator noted that the ‘phenomenon resulted in the emergence of a legal system which is a hybrid of Roman Civil Law and Anglo-American Common Law.’ This hybrid, as irony would have it, was and still is ‘neither civil nor common law,’ but rather ‘typically Filipino.’ IV. Conclusion The comparatist Ernst Rabel once wrote that ‘[c]ommon law and civil law are generally believed to be different, like oil and water, which do not mix.’ The purpose of studying comparative law, however, has been to mix the unmixable - that is, adherents of the common law consider civil law ‘uncommon’ and civilians view the common law as ‘uncivil.’ Through the study of comparative law, however, common ground is sought in uncommon areas. Traditionally, scholars have applied comparative law as a tool to perform two crucial purposes. First, the lessons of comparative law ‘promised to provide insights on our own legal order through a comparison with other legal systems.’ Second, by applying comparative analysis we ‘illuminate the structures and internal processes of foreign legal systems, either for the purpose of legal harmonization, or to facilitate negotiations with foreign lawyers and business entities.’ One particularly fertile area of comparison occurs naturally in mixed jurisdictions, such as Louisiana and the Philippines. It has been said that members of the legal community in mixed jurisdictions are ‘born comparatists.’ As this paper has shown, Louisiana and the Philippines have been ‘particularly fortunate in that [they have], as a basic law, a civil code not unlike those in force in civil countries; but . . . also [have] adopted to a marked degree the common-law view of the binding effect of judicial decisions.’ Thus, these mixed jurisdictions are ‘blest with the basic certainty of the civil law, together with that flexibility of the common law which comes from a strong and powerful judiciary.’ The experience of these mixed jurisdictions is immeasurable because of their innate ability to circumvent the weaknesses inherent in, and enhance the strengths of, both traditions. For proponents of the common law, mixed jurisdictions such as Louisiana and the Philippines, can serve as a guide to point out stumbling blocks in administering a system of codified law. For civilians, mixed jurisdictions can show the advantages of having a powerful judiciary and molding the civil law to fit the requirements of an ever-changing world. For both traditions, mixed jurisdictions offer a unique opportunity for closer contact - vrai rapprochement - because of their ability to walk through both systems with ease. It has been said, however, that the apparent is often elusive to perceive, and this might be the case with our two sample mixed jurisdictions. Comparative law analysis ‘implies the ability to judge one’s system through another,’ whereas in Louisiana and the Philippines, ‘the system of reference is, to a certain degree, already integrated in the object of the comparison.’ Therefore, if the harmonization of legal structures is a goal that adherents of both legal traditions value, and the result one that would enhance the efficiency of how we conduct legal business, then both legal traditions will have to work in tandem in order to achieve the desired results.