One of my dilemmas in law school
is finding the connection between my pre-law course and the study of law
itself. I tried to embrace the study of law in a philosophical perspective but
this attempt ceased when I cannot find a connection between Philosophy and Law
[the former is verbose and the latter brief and precise]. Perhaps, it is the novelty of law subjects and
the traditional way of teaching and studying law, i.e. memorizing provisions in verbatim and cramming to read several
cases that made me feel this way [Of course! You have no time to ask
philosophical questions such as “is it a good law?” or “why
such a law?” if the only thing demanded from
you is to recite legal provisions in verbatim or have to read and recite at
least 5 cases per subjects a day, even without delving into the reasons why the
plaintiff or defendant lost the case- perhaps it is better to ask the propriety
of the remedy accorded by the counsel of the losing party and not just ask the
student to narrate the development of the case up to the Supreme Court]. However,
as my legal education continues I am slowly seeing a connection between
Philosophy and law.
Sophia Legis
Friday, August 30, 2013
Tuesday, May 7, 2013
What does "jurisdiction is determined by the allegations in the complaint or information" mean?
As a rule, jurisdiction is conferred by law.
Thus, "jurisdicition is determined by the allegations in the complaint or infornmation" does not mean that allegations confer jurisdiction. It is the law that confers jurisdiction, thus without the law there is no jurisdiction.
Rather the phrase means that jurisdictional facts must be alleged in the complaint or information.
Thus, "jurisdicition is determined by the allegations in the complaint or infornmation" does not mean that allegations confer jurisdiction. It is the law that confers jurisdiction, thus without the law there is no jurisdiction.
Rather the phrase means that jurisdictional facts must be alleged in the complaint or information.
Friday, May 3, 2013
Evidence: Can previous acts be used as evidence to prove present or future acts?
Rule 130, Sec. 34 . Similar acts as evidence.
— Evidence that one did or did not do a certain thing at one time is
not admissible to prove that he did or did not do the same or similar
thing at another time; but it may be received to prove a specific intent
or knowledge; identity, plan, system, scheme, habit, custom or usage,
and the like. (48a)
General Rule: Previous conduct cannot be admitted as evidence. It cannot be used to prove presents act or future acts.
Exceptions: Previous conduct may be used to prove the following:
General Rule: Previous conduct cannot be admitted as evidence. It cannot be used to prove presents act or future acts.
Exceptions: Previous conduct may be used to prove the following:
- to prove specific intent or knowledge;
- to prove identity;
- to prove a plan, system, design, modus operandi; and
- to prove habit, custom, usage or practice.
Thursday, May 2, 2013
How to destroy the competency of a child witness.
The Rule on the examination of a Child Witness provides:
Section 6- every child is presumed qualified to be a witness. However, the court shall conduct a competency examination of a child, motu proprio or on motion of a party, when if finds that substantial doubt exists regarding the ability of the child to perceive, remember, communicate, distinguish truth from falsehood, or appreciate the duty to tell the truth in court.
(a) Proof of necessity- a party seeking a competency examination must present proof of necessity of competency examination. The age of the child by itself is not a sufficient basis for a competency examination.
xxx
Section 6- every child is presumed qualified to be a witness. However, the court shall conduct a competency examination of a child, motu proprio or on motion of a party, when if finds that substantial doubt exists regarding the ability of the child to perceive, remember, communicate, distinguish truth from falsehood, or appreciate the duty to tell the truth in court.
(a) Proof of necessity- a party seeking a competency examination must present proof of necessity of competency examination. The age of the child by itself is not a sufficient basis for a competency examination.
xxx
Wednesday, May 1, 2013
How to avoid crossing swords with high profile lawyers/ lawfirms.
Rule 130, Section 24 of the Rules of Court
The following persons cannot testify as to matters learned in confidence in the following cases:
xxx
b) an attorney cannot, without the consent of his client, be examined as to any communication made by the client to him, or his advice given thereon in the course of, or with a view to, professional employment, nor can an attorney's secretary, stenographer, or clerk be examined, without the consent of the client and his employer, concerning any fact the knowledge of which has been acquired in such capacity.
xxx
The following persons cannot testify as to matters learned in confidence in the following cases:
xxx
b) an attorney cannot, without the consent of his client, be examined as to any communication made by the client to him, or his advice given thereon in the course of, or with a view to, professional employment, nor can an attorney's secretary, stenographer, or clerk be examined, without the consent of the client and his employer, concerning any fact the knowledge of which has been acquired in such capacity.
xxx
The Witnessing Empiricist
Evidence is purely
epistemology. Thus, Santiago asserts that he saw Pedro killed Juan; he opens
himself to plethora of questions. Of course, reason dictates that any
responsible person who makes a claim guarantees that he is prepared to advance
what is acceptable as proof of the claim he makes. If he fails to do so not
only is his claim compromised; his credibility suffers a dent-and sometimes an
irreparable one- as well. Therefore, in so doing, a person making a claim,
guarantees that his senses are not questionable or he is in his right mind when
he saw the incident. The school of thought on empiricism is very instructive on
this.
Empiricism is a school of thought which teaches that
knowledge came from the senses [as oppose to rationalism, which asserts that
knowledge is innate]. Thus, at one point Locke pronounced that the human mind
is tabu la rasa or an empty slate, which can be filled by one’s
experiences and perceptions, i.e. one knows that an ember is extremely hot
because at point of his life he had experienced its hotness either by accidental
or intentional contact.
This school of thought was championed by John
Locke, George Berkeley, and David Hume. But for this endeavour, Hume will be
given great consideration.
Monday, April 29, 2013
Anxiety as the Disclosement of Care
The experience of
moods or attunements speaks of Dasein’s being-in-the-world. Although
Heidegger had examined various moods such as fear, he focused on the analysis of
anxiety. This is to pave the ground for his analysis of Dasein’s being, which
he baptizes with the name Sorge [Care]. Heidegger believes that anxiety
is the key mood for the total disclosure of human existence. More specifically,
anxiety reveals that man’s very being is primarily characterized by what
Heidegger calls Care.
In Heideggerian
analysis of anxiety, fear was lucidly distinguished from anxiety. Fear has an
object, thus fear is always a fear of something. “Fear is directed toward
something definite, it focuses on detail” (Safranski, p.152). In other words,
fear is marked by specifity, wherein one is afraid of being harmed in some
specific respect by something that approaches in some specific way, from some
specific sector of its environment. Hence one can readily point to the thing
that provokes fear, identify why it fears it, and locate its point of origin.
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