Natural Law and Natural Rights

By James A. Donald
jamesd@echeque.com

Natural law and natural rights follow from the nature of man and the world. We have the right to
defend ourselves and our property, because of the kind of animals that we are. True law derives
from this right, not from the arbitrary power of the omnipotent state.

Natural law has objective, external existence. It follows from the ESS (evolutionary stable
strategy) for the use of force that is natural for humans and similar animals. The ability to make
moral judgments, the capacity to know good and evil, has immediate evolutionary benefits: just
as the capacity to perceive three dimensionally tells me when I am standing on the edge of a cliff,
so the capacity to know good and evil tells me if my companions are liable to cut my throat. It
evolved in the same way, for the same straightforward and uncomplicated reasons, as our ability
to throw rocks accurately.

Natural law is not some far away and long ago golden age myth imagined by Locke three
hundred years ago, but a real and potent force in today's world, which still today forcibly
constrains the lawless arrogance of government officials, as it did in Dade county very recently.

The opponents of natural rights often complain that the advocates of natural rights are not
logically consistent, because we continually shift between inequivalent definitions of natural law.
They gleefully manufacture long lists of “logical contradictions”. Indeed, the definitions we use
are not logically equivalent, but because of the nature of man and the nature of the world, they
are substantially equivalent in practice. These complaints by the opponents of natural rights are
trivial hair splitting, and pointless legalistic logic chopping. It is easy to imagine in principle a
world where these definitions were not equivalent. If humans were intelligent bees, rather than
intelligent apes, these definitions would not be equivalent, and the concept of natural law would
be trivial or meaningless, but we are what we are and the world is what it is, and these
definitions, the definitions of natural law, are equivalent, not by some proof of pure reason, but
by history, experience, economics, and observation.

In this paper I have used several different definitions of natural law, often without indicating
which definition I was using, often without knowing or caring which definition I was using.
Among the definitions that I use are:

 The medieval/legal definition: Natural law cannot be defined in the way that positive law
is defined, and to attempt to do so plays into the hands of the enemies of freedom.
Natural law is best defined by pointing at particular examples, as a biologist defines a
species by pointing at a particular animal, a type specimen preserved in formalin. (This
definition is the most widely used, and is probably the most useful definition for lawyers)
  The historical state of nature definition: Natural law is that law which corresponds to a
spontaneous order in the absence of a state and which is enforced, (in the absence of
better methods), by individual unorganized violence, in particular the law that historically
existed (in so far as any law existed) during the dark ages among the mingled barbarians
that overran the Roman Empire.
 The medieval / philosophical definition: Natural law is that law, which it is proper to
uphold by unorganized individual violence, whether a state is present or absent, and for
which, in the absence of orderly society, it is proper to punish violators by unorganized
individual violence. Locke gives the example of Cain, in the absence of orderly society,
and the example of a mugger, where the state exists, but is not present at the crime. Note
Locke's important distinction between the state and society. For example trial by jury
originated in places and times where there was no state power, or where the state was
violently hostile to due process and the rule of law but was too weak and distant to
entirely suppress it.
 The scientific/ sociobiological/ game theoretic/ evolutionary definition: Natural law is, or
follows from, an ESS for the use of force: Conduct which violates natural law is conduct
such that, if a man were to use individual unorganized violence to prevent such conduct,
or, in the absence of orderly society, use individual unorganized violence to punish such
conduct, then such violence would not indicate that the person using such violence,
(violence in accord with natural law) is a danger to a reasonable man. This definition is
equivalent to the definition that comes from the game theory of iterated three or more
player non zero sum games, applied to evolutionary theory. The idea of law, of actions
being lawful or unlawful, has the emotional significance that it does have, because this
ESS for the use of force is part of our nature.

Utilitarian and relativist philosophers demand that advocates of natural law produce a definition
of natural law that is independent of the nature of man and the nature of the world. Since it is the
very essence of natural law to reason from the nature of man and the nature of the world, to
deduce “should” from “is”, we unsurprisingly fail to meet this standard.

The socialists attempted to remold human nature. Their failure is further evidence that the nature
of man is universal and unchanging. Man is a rational animal, a social animal, a property owning
animal, and a maker of things. He is social in the way that wolves and penguins are social, not
social in the way that bees are social. The kind of society that is right for bees, a totalitarian
society, is not right for people. In the language of sociobiology, humans are social, but not
eusocial. Natural law follows from the nature of men, from the kind of animal that we are. We
have the right to life, liberty and property, the right to defend ourselves against those who would
rob, enslave, or kill us, because of the kind of animal that we are.

Law derives from our right to defend ourselves and our property, not from the power of the state.
If law was merely whatever the state decreed, then the concepts of the rule of law and of
legitimacy could not have the meaning that they plainly do have, the idea of actions being lawful
and unlawful would not have the emotional significance that it does have. As Alkibiades argued,
(Xenophon) if the Athenian assembly could decree whatever law it chose, then such laws were
“not law, but merely force”. The Athenian assembly promptly proceeded to prove him right by
issuing decrees that were clearly unlawful, and with the passage of time its decrees became more
and more lawless.

The Greeks could see that we could recognize actions as inherently lawful or unlawful, without
the need of the state to tell us. (They had lived through some excellent examples of lawless
states.) But how is it that we know? They came out with an astonishingly modern answer, a line
of reasoning that we would now call sociobiological.

Aristotle and others argued that each kind of animal has a mental nature that is appropriate to its
physical nature. All animals know or can discover what they need to do in order to lead the life
that they are physically fitted to live. Thus humans are naturally capable of knowing how to live
together and do business with each other without killing each other. Humans are capable of
knowing natural law because, in a state of nature, they need to be capable of knowing it.

This theory was demonstrated rather successfully in the “Wild West”, which history shows was
not nearly as wild as many modern cities with strict gun control. Beyond the reach of state
power, property rights existed, businesses functioned. (Kopel, 323 -373)

Modern sociobiology uses the phrase “social animal” to mean what Aristotle meant by “political
animal” and what Thomas meant by “political and social animal”. In modern terminology, ants
and bees are “eusocial” which means “truly social”. Humans, Apes, and wolves are “social”.

The problem of “how do we know natural law” is no different from the other problems of
perception. The arguments used by those that seek to prove that we cannot know natural law,
therefore natural law does not exist, are precisely the same as the arguments that we cannot know
anything, therefore nothing exists, and many notable philosophers, such as Berkeley and
Bertrand Russell, who started out arguing that natural law does not exist ended up concluding
exactly that - that nothing exists.

Philosophers usually try to reason from reason alone, as is done in mathematics, though it was
long ago proven that this cannot be done, except in mathematics, and perhaps not even there.

To draw conclusions about the world one must look both without and within. Like the chicken
and the egg, observation requires theory and observation leads to theory, theory requires
observation and theory leads to observation. This is the core of the scientific method, in so far as
the scientific method can be expressed in words.

Natural law derives from the nature of man and the world, just as physical law derives from the
nature of space, time, and matter.

As a result most people who are not philosophers or lawyers accept natural law as the ultimate
basis of all law and ethics, a view expressed most forcibly in recent times at the Nuremberg
trials. Philosophers, because they often refuse to look at external facts, are unable to draw any
conclusions, and therefore usually come to the false conclusion that one cannot reach objectively
true conclusions about matters of morality and law, mistaking self imposed ignorance for
knowledge.
Although many philosophers like to pretend that Newton created the law of gravity, that Einstein
created general relativity, this is obviously foolish. Universal gravitation was discovered, not
invented. It was discovered in the same way a deer might suddenly recognize a tiger partially
concealed by bushes and the accidental play of sunlight. The deer would not be able to explain in
a rigorous fashion, starting from the laws of optics and the probabilities of physical forms, how it
rigorously deduced the existence of the tiger from the two dimensional projections on its retina,
nonetheless the tiger was there, outside the deer, in the objective external world whether or not
the deer correctly interpreted what it saw. The tiger was a discovery, not a creation, even though
neither we nor the deer could prove its existence by formal logic. And proof of its concrete
external existence is the fact that if the deer failed to recognize the tiger, it would soon be eaten.

A determined philosopher could obstinately argue that the perception of the tiger was merely an
interpretation of light and shadow (which is true), that there is no unique three dimensional
interpretation of a two dimensional image (which is also true), and that everyone is entitled to
their own private and personal three dimensional interpretation (which is false), and would no
doubt continue to argue this until also eaten. Something very similar to this happened to a
number of philosophers in Cambodia a few years ago.

History

Natural law was discovered (not invented, not created, discovered) by the stoic philosophers.
This was the answer (not their answer, the answer) to the logical problems raised by Socrates.
The doctrines of the stoics were demonstrated successfully by experiment, but political
circumstances (the Alexandrine empire and then the Roman empire) prevented a clear and
decisive experiment.

Frequently politicians or revolutionaries use natural law theory, or some competing theory to
create institutions. Such cases provide a powerful and direct test of theories. Advances in our
understanding of natural law have come primarily from such experiments, and from the very
common experience of the breakdown or forcible destruction of state imposed order.

The bloody and unsuccessful experiment of Socrates disciple, Critias, showed that the rule of
law, not men, was correct. This renewed the question “What law, who's law.” Not all laws are
arbitrary, there must be laws universally applicable, because of the universal nature of man.
Laws governing human affairs, or at least some of those laws, must derive from some objective
and external reality, not subject to the arbitrary will of the ruler or the people. If this was not so,
then it would be impossible to make an unlawful law. Any law duly decreed by a legitimate
ruling body, such as the Athenian assembly, would necessarily be lawful, yet history shows that
this was obviously false. Some laws are clearly unlawful. Proof by contradiction.

“There is in fact a true law - namely, right reason - which is in accordance with nature, applies to
all men, and is unchangeable and eternal.” (Cicero) Cicero successfully argued before a Roman
court that one of the laws of Rome was unlawful, being contrary to natural law, creating a legal
precedent that held throughout the western world for two thousand years. Although it was
frequently violated, it was rarely openly rejected in the West until the twentieth century.

The arguments and reasoning of the Stoics were generally accepted, but not thoroughly put into
practice and therefore not vigorously tested, for over a thousand years.

A philosopher can choose to disbelieve in Newton's laws, but this will not enable him to fly. He
can disbelieve in natural law, but political and social institutions built on false law will fail, just
as a bridge built on false physical law will fall, just as the deer that does not notice the tiger gets
eaten, just as the Marxist philosophers who voluntarily returned to Cambodia to aid the
revolution were for the most part murdered or tortured to death by the revolutionaries. The most
extreme failure in recent times was the attempt of the Cambodian government to increase the rice
harvest by central direction of irrigation, also known as “the Cambodian Autogenocide”.

During the dark ages, the knowledge of natural law, like much other ancient knowledge, was
kept alive by the church. This knowledge proved very useful. Hordes of armed refugees
wandered this way and that, thus tribal and customary law was often inadequate for resolving
disputes. Sometimes a king would rise up and impose his peoples customary law on everyone
around, but such kings came and went, and their laws and institutions faded swiftly.

In those days the church persistently and rightly claimed that natural law was above customary
law, and that customary law was above tribal law and the law of the kings (fiat law). Natural law
was taught in the great Universities of Oxford, Salamanca, Prague, and Krakow, and in many
other places.

In England the theory of natural law led to the Magna Carta, the Glorious Revolution, the
declaration of right, and the English Enlightenment. It was the basis for the US revolution and
the US bill of rights.

The next major advance in our knowledge of natural law after the dark ages came with the Dutch
republic. The success of this experiment is almost as illuminating as the failure of Critias. The
failure of Critias showed that the rule of law, not men was correct. The success of the Dutch
Republic showed that the medieval understanding of natural law was sufficiently accurate.

The long revolution by the Dutch against Spain obliterated or gravely weakened those people
and institutions responsible for enforcing customary law and fiat law, and little was done to
replace these institutions for two generations. But it is everyone's right and duty to forcibly
uphold natural law, thus in order to get a law enforced, or to get away with enforcing it oneself,
ones lawyer had to argue natural law, rather than customary law. Thus the Netherlands came to
be governed predominantly by natural law, rather than by men or by customary law.

Society ran itself smoothly. This showed that natural law was complete and logically consistent.
Of course since natural law is external and objective it has to be complete and consistent, but our
understanding of natural law is necessarily incomplete and imperfect, so our understanding of it
might have been dangerously incomplete, inconsistent, or plain wrong. The experience of the
Dutch strongly supports the belief that our understanding of natural law, the medieval theory of
natural law as interpreted by medieval lawyers, is fairly close to the truth. If natural law was just
something that somebody made up out of their heads, it would not have worked. Internal
inconsistencies would have lead to conflicts that could not be resolved within natural law,
requiring the man on horseback to apply fiat law or customary law to resolve them.
Incompleteness would have lead to unacceptable lawless behavior. None of this happened,
powerful evidence that natural law is not just something invented, but something external and
objective that we are able to perceive, like the tiger, like the law of gravity.

For a long time people advocated natural law merely because they thought that if people
pretended to believe it, it would lead to less bloodshed and other desirable consequences, and no
great effort had been applied to the assumptions and methods of natural law theory. Now people
started to advocate natural law because they had convincing evidence that our understanding of it
was true. Thus came the English enlightenment, John Locke and Adam Smith.

John Locke made a major advance to our understanding of natural law, by emphasizing the
nature of man as a maker of things, and a property owning animal. This leads to a more extensive
concept of natural rights than the previous discussions of natural law. From the right to self
defense comes the right to the rule of law, but from the right to property comes a multitude of
like rights, such as the right to privacy “An Englishman's home is his castle.” Further, Locke
repeatedly, in ringing words, reminded us that a ruler is legitimate so far as he upholds the law.

A ruler that violates natural law is illegitimate. He has no right to be obeyed, his commands are
mere force and coercion. Rulers who act lawlessly, whose laws are unlawful, are mere criminals,
and should be dealt with in accordance with natural law, as applied in a state of nature, in other
words they and their servants should be killed as the opportunity presents, like the dangerous
animals that they are, the common enemies of all mankind.

John Locke's writings were a call to arms, an assertion of the right and duty to forcibly and
violently remove illegitimate rulers and their servants.

This provided the moral and legal basis for many great revolutions, and many governments.
After the American revolution the North Americans were governed more or less in accordance
with natural law for one hundred and thirty years.

John Locke was writing for an audience that mostly understood what natural law was, even those
who disputed the existence and force of natural law knew what he was talking about, and they
made valid and relevant criticisms. In the nineteenth century people started to forget what natural
law was, and today he is often criticized on grounds that are irrelevant, foolish, and absurd.

Today many people imagine that natural law is a code of words, like the code of Hammurabi, or
the twelve tables, written down somewhere, on the wall of an ancient Greek temple, or some
medieval vellum manuscript, perhaps revealed by God or some divinely illuminated prophet.
Then when they find that no such words exist, no such prophets are recorded, they say there is no
such thing as natural law, because no one wrote down what it was.
Natural law is a method, not a code. One does not reason from words but from facts. The nearest
thing to a written code of natural law is the vast body of natural law precedent. But a precedent
only applies to similar cases, and is thus rooted in the particular time and circumstances of the
particular case, whereas natural law is universal, applying to all free men at all times and all
places.

In the middle ages the Medieval scholars defined natural law in a deliberately circular fashion.
There was “Ius Divinum”, “Ius Commune”, and “Ius Naturale”. “Ius Divinum” means, more or
less, the divinely revealed will of God. “Ius Commune” means, more or less, the long established
customary law of nations, peoples, and states that are generally regarded as reasonably civilized.

Note that “Ius Naturale” does not derive from the customs of civilized peoples. Instead it
provides with a ground on which to judge which peoples are civilized. It does not derive from the
divinely revealed will of God. It provides us with a ground to judge the plausibility of claims of
divine revelation concerning the will of God.

“Ius Naturale” is the law applicable to men in a state of nature. It precedes religions and kings
both in time and in authority. “Ius Naturale” does not derive directly from the will of God. As
Hugo Grotius pointed out in the early seventeenth century, even if there was no God, or if God
was unreasonable or evil, natural law would still have moral force, and men would still
spontaneously back it with physical force. God could not create men as they are, and at the same
time make natural law other than what it is. A God that claimed to do that would be a mere
tyrant, unworthy of worship.

Natural law derives from the method and approach then called natural philosophy. For thousands
of years advocates of natural law would start with what is now the standard rationale for
sociobiology, by pointing out how the wolf and the deer each have natures and inclinations
appropriate for the kind of life they needed to live and to take proper care of their offspring.
Today, in the language used by modern sociobiologists natural law is the ESS (Evolutionary
Stable Strategy) for the use of force, employed by our species and by like species, applied by us
by means of reason to problems and circumstances that confront us today. In older language, it
comes from the tree of knowledge, which made us as gods.

Although natural law is an integral part of Christianity, at least of the Christianity of Thomas and
Locke, Christianity is not an integral part of natural law. If you went through Locke's second
treatise of Civil Government and substituted the phrase “chance and necessity” for the phrases
“divine providence” and “judgment of heaven”, there would not be any great change in the
meaning or force of his argument.

Many of the key themes of modern sociobiology first appeared in Locke's treatises on
government, for example Second Treatise §79-81, First Treatise §56-57. Some parts of the
second treatise are often consciously or unconsciously echoed on Public Broadcasting System
nature and science videos whenever they discuss the family lives and social interactions of non
human animals.
Locke and the other Christian advocates of natural law believe that natural law is in accordance
with the will of God not because they claim a divine revelation concerning the will of God, but
because they believe that the nature of man and the world reflects the will of God.

The stoics and Grotius believed in a universe governed by chance and necessity, with a God that
created things, but refrained from subsequent interference. Thomas and Locke believed in a
universe that reflects the continuing will of God. It makes little difference. The stoics and Saint
Thomas Aquinas started from the same facts and came to the same conclusions from those facts.
They merely used slightly different language to describe their reasoning.

Throughout most of our evolution, men have been in a state of nature, that is to say. without
government, hierarchically organized religion, or an orderly and widely accepted means of
resolving disputes. For the past four or five million years the capacity to discern evil lurking in
the hearts of men has been an even more crucial survival capability than the capacity to discern
tigers lurking in shadows.

The primary purpose of this capability was to guide us in who we should associate with, (so as to
avoid having our throats cut in our sleep), who we should make alliance with (to avoid betrayal),
who we should trade with, (to avoid being cheated), who we should avoid, who we should drive
away, and who, to make ourselves safe, we should kill.

It would frequently happen that one man would, for some reason good or bad, use violence
against another. When this happened those knowing of this event needed to decide whether it
indicated that the person using force was brave and honorable, hence a potentially valuable ally,
or foolish and eager for trouble, hence someone to be avoided, or a dangerous criminal, hence
someone to be driven out or eliminated at the first safe opportunity to do so. Such decisions had
to be made from time to time, and making them wrongly could be fatal, and often was fatal.

A secondary purpose of this capability was to guide us in our own conduct, to so conduct
ourselves that others would be willing to associate with us, ally with us, do deals with us, and
would refrain from driving us away or killing us.

Not all things that are evil, or contrary to nature, are violations of natural law. Violations of
natural law are those evils that may rightly be opposed by force, by individual unorganized
violence.

The Medievals took for granted that natural law was morally and legally binding on freeholder,
Emperor and Pope alike, and during the dark ages and for a little time after, men often attempted
to enforce natural law against the Holy Roman Emperor, and these attempts were sometimes
successful. On one occasion the Holy Roman Emperor was briefly imprisoned for debt by an
ordinary butcher, locked up with the beef and mutton, and held by the butcher until the bill was
paid, and this action was mostly accepted as lawful and proper, though such actions were safer
against some emperors than others.

The definition of natural law that I have just given is similar to that used in the middle ages, but
this definition is not obviously scientific. It fails to show that natural law is legitimately part of
science. To show that the study of natural law is part of science - part of sociobiology, it is
necessary to restate the definition in the same value free, game theoretic, terminology that Reeve
& Nonacs would use to describe the social contract in wasps.

Here follows a definition of natural law in properly scientific terms, value free terms:

An act is a violation of natural law if, were a man to commit such an act in a state of nature, (that
is to say, in the absence of an orderly and widely accepted method of resolving disputes), a
second man, knowing the facts and being a reasonable man, would reasonably conclude that the
first man constituted a threat or danger to the second man, his family, or his property, and if a
third man, knowing the facts and being a reasonable man, were to observe the second man
getting rid of the first man, the third man would not reasonably conclude that the second man
constituted a threat or danger to third man, his family, or his property.

Note that in order to define natural law in a value neutral fashion we require three people, not
two.

This is well illustrated in the recent events in Dade county, Florida (September - October 1992,
three months before I wrote this), where property holders gave other property holders guns in the
well founded expectation that those guns would be used to prevent, rather than to facilitate,
unlawful transfers of property. To define natural law in Dade county you would need one looter
or one corrupt official, and two home owners. In value free language, one Dade county home
owner and one corrupt official is a property dispute. Two Dade county home owners and one
corrupt official is natural law in action. Two Dade county home owners with nobody bothering
them is spontaneous order, and of course part of the definition of spontaneous order is that it is a
stable order that arises spontaneously from the action of natural law.

The scientific definition is equivalent to the medieval definition because of the nature of man and
the nature of the world. The two definitions are equivalent for our kind of animal, because if
someone uses violence properly, and reasonably, he does not show himself to be dangerous to a
reasonable man, but if someone uses violence improperly, he shows himself to be a danger. This
is obvious by direct intuition, and there is also overwhelming historical evidence for this fact.
For example compare the American revolution with the Russian or Cambodian revolution. The
surviving American revolutionaries prospered. The communist revolutionaries were soon
executed by their new masters. Almost everyone who played a significant role in the 1917
revolution was executed or died from brutal mistreatment.

The varying definitions of natural law are clearly consistent on the issue of individual violence.
On the topic of collective violence, the questions of what are just grounds for making war, how
may a just war be conducted, and what may a just victor do with an unjust loser, the various
definitions of natural law often seem cloudy and contradictory. There are two reasons for this
apparent cloudiness. One is that there is no natural definition of a collective entity, so it all
depends on what gives the collective entity its substance and cohesion, how the individual is a
participant in the acts of the collective entity. The Nuremberg trials contain extensive discussions
of this point. The other reason is that there is a large difference between what the victor should
do and what the victor may lawfully do. The victor should be magnanimous and lenient, as at
Nuremberg, but may lawfully be strict and harsh. On the questions that most commonly arise in
practice, all the different definitions of natural law give clear, consistent and straightforward
answers: The usual reason for war is that one group defines another group as enemy, and then
uses organized collective violence to seize the property of the members of that group, and to
enslave or kill them. In such case it is open season on the aggressor because they constitute a
clear danger to their neighbors. In a just war it lawful to napalm bomb enemy civilians in a
defended city, though not to intentionally target enemy civilians, unlawful to bombard an open
city, and unlawful to massacre prisoners under any circumstances, though individual prisoners
may be executed for broad reasons. It is sometimes lawful to refuse to take prisoners, depending
on the circumstances. The contradictions usually evaporate when we ask the questions that we
are actually interested in, about the kind of situations that actually occur in practice. Arguments
about whether a given military action was in accordance with the laws of war usually involve
appeal to the facts, and arguments about the intentions and capabilities of the combatants, rather
than appeal to differing concepts of the laws of war, indicating that our uncertainty concerning
the laws of war is less than other sources of uncertainty.

When we apply the value free theory of iterated non zero sum two player games to the value free
theory of evolution we get such value loaded concepts as trust, honor, and vengeance (Barkow,
Cosmides and Tooby). In the same way, when we apply the value free theory of iterated three
player non zero sum games we get such value loaded concepts as natural law.

Natural law theory is a valid part of science, because any n person natural law statement about
values can be expressed as an explicitly scientific, value free statement about rational self
interest, evolution, and n + 1 player game theory. It is also a valid part of the study of law and
economics

In many fields of academia, straying in the direction of consideration natural law is apt to make
your grants dry up, perhaps natural law theory tends to delegitimize most grant giving
authorities.

Those academics who study sociobiology have been a little braver, perhaps because those who
work in the hard sciences are sometimes better at looking after their own, or, as in the case of
E.O. Wilson, they simply did not realize they were poking a hornets nest. Also hard science
people sometimes seem to be tougher, more obstinate, stubborn, and intransigent than fuzzies.

Hobbes Criticism of natural law

The existence and force of natural law has been continually disputed by those who claim that the
state should exercise limitless power over individuals.

Early in the seventeenth century Thomas Hobbes argued that the nature of man was not such that
one could deduce natural law from it, or rather he argued that the natural law so deduced placed
no important limits on the power of the ruler to do as he pleased, to remake society as he wished,
that social order was purely a creation of state power.
Hobbes claimed that in a state of nature, it is a war of all against all, and life is “poor, solitary,
nasty, brutish, and short”. This of course is a direct contradiction of the usual natural law
argument that man is a social animal, adapted by nature to live mostly peaceably with his fellow
men, and do business with them quietly.

Therefore, Hobbes argued, the state is entitled to unlimited power, and right is whatever the state,
through its laws, says is right, and wrong whatever the state says is wrong. An “unjust law” is a
contradiction in terms because the will of the state is itself the standard of justice, thus the ruler
can do no wrong. The ruler is answerable to God, but everyone else is answerable only to the
ruler.

Hobbes saw rights as a creation of state power: Therefore, in order that we might have more and
better rights, state power should be as absolute and total as possible. The state should pervade
and dominate every relationship in order to provide everyone with justice and rights, and
suppress any form of association that it does not create and control, and the state should silence
any criticism of its absolute power (so that we might be more free).

“Another infirmity of a Commonwealth is the immoderate greatness of a town, [...] also the great
number of corporations, which are as it were many lesser Commonwealths in the bowels of a
greater, like worms in the entrails of a natural man. To which may be added, liberty of disputing
against absolute power by pretenders to political prudence; which though bred for the most part
in the lees of the people, yet animated by false doctrines are perpetually meddling with the
fundamental laws, to the molestation of the Commonwealth, like the little worms which
physicians call ascarides.”

There are some people who read Hobbes, like his reasoning, like some of his conclusions, and
discard the conclusions that the twentieth century has shown to be catastrophic. This is
inconsistent. If you agree with his assumption that man is not a social animal, then his conclusion
that the institutions of a totalitarian state are necessary and desirable, are necessary for people to
be free, follows logically.

Hobbes is often called the first atheistic political philosopher. This statement is misleading. There
were plenty of political philosophers before Hobbes who had little use for religion, or were
hostile towards Christianity, and made little pretense of Christianity. Hobbes was, or pretended to
be, a conventional Christian. What made Hobbes different is that he saw religion as a threat to
the moral omnipotence of the state. Hobbes argued that subjects of Leviathan should submit not
merely their actions but “their Wills, every one to his Will, and their Judgments to his
Judgment.” Hobbes's Leviathan was to define the meaning of all words, including, indeed
especially, the meaning of the words good and evil. Thus Hobbes's state was to be God, and man
could have no other gods before the god of the state. What made Hobbes different is not that he
was cynical about Christianity (there were many political philosophers before him more cynical
than he) but that he was the first in the sophist tradition to propose what Plato had proposed: to
divert religious impulses towards the state, as was eventually done on a large scale during the
twentieth century, most vigorously in Nazi Germany and in the Communist countries.
Hobbes claim that in the state of nature life is “solitary, poor, nasty, brutish, and short” can be
observed to be false. It is true that during the dark ages, spontaneous order often failed, with
bloody consequences, but even a few examples of spontaneous order suffice to demonstrate the
existence and force of natural law, just as any number of non tigers cannot disprove the existence
of tigers, but two tigers are sufficient to prove existence. In fact a state of nature is very rarely the
war of all against all, as Locke pointed out. Spontaneous order held much more often than it
failed. Natural law was the norm, both morally and in practice. Of course was not effective all
the time, but it was effective often enough that its existence is an indisputable fact. Hobbes
history was simply wrong. He took the dramatic events of history, and ignored the commonplace,
and treated the dramatic events as the norm. In addition, those dramatic and bloody breakdowns
of order that did happen during the dark ages were often the result of armies of refugees fleeing
the lawless and criminal activities of states.

Hobbes also argued that even if men know what is just, they will not always do what is just, and
that this will often lead to war. This is of course true, but that argument does not lead to the
conclusion that men should submit to absolute power. Quite the contrary. As Locke argued, and
as the twentieth century dramatically showed, inequality of power does not lead to less use of
unjust force, but to greater use of unjust force. Human wickedness is an argument for liberty, not
an argument for absolute forms of government.

This argument is no longer used by the modern successors of Hobbes. To conclude for
absolutism, it is necessary to argue, as Hobbes argued, that men *cannot* know what is just use
of force, and must be provided with an arbitrary definition of justice by some authority
possessing a single will, as Hobbes argued. To argue for absolutism from human evil, as both
Hobbes and De Maistre also argued, is foolish, and these days nobody makes that argument,
regardless of their political persuasion.

If the war of all against all occurs because men cannot know what use of force is just, then
indeed law is a creation of the state, as Hobbes argued, and the state is above the law, as Hobbes
argued, and social cohesion derives from the will of the ruler, as Hobbes implied. But if violent
conflict occurs because of simple uncomplicated evil acts by evil men, then his arguments are
invalid, and the arguments of Bastiat and Locke apply — law is collective self defense, thus the
state must govern under law, it is not the source of law. The state cannot justly use force in ways
that would be illegitimate for an individual in a state of nature. Social cohesion derives from
arrangements to ensure that people apply retributive force justly and that the use of such force
can be seen to be just, what nineteenth century people called “due process and the rule of law&”.
Social cohesion does not derive from a single central will, contrary to Hobbes arguments and
assumptions.

The right to bear arms

During the seventeenth and eighteenth centuries natural law was accepted in men's heads and in
courts of law, as it always has been accepted in men's hearts. The advocates of absolutism were
defeated, first intellectually, then politically, and then by force of arms. Kings who claimed to
rule by divine right were killed or forced to flee.

The Glorious Revolution of 1688 guaranteed an Englishman's right to bear arms (a right now
lost), and more importantly, prohibited the state from using what we would now call a police
force. The people were armed, state was unarmed. Individuals, not the state or the mob, applied
lawful force when needed. This worked well, disproving the doctrine of monopoly of force,
which derives from the absolutists, notably Hobbes.

In the medieval period the state had never had a large role in maintaining order. Often it was a
source of disorder. The Glorious Revolution eliminated its role in enforcement for about two
hundred years, while legitimizing its role in judgment.

In a society where there is pluralistic use of force, there needs to be respect for natural law, and
natural rights, in order to avoid strife and civil war. Similarly a belief in natural rights tends to
result in pluralistic use of force, because people obviously have the right to defend their rights,
whereas disbelief in natural rights tends to lead to an absolute monopoly of force to ensure that
the state will have the necessary power to crush peoples rights and to sacrifice individuals,
groups, and categories of people for the greater good. Conversely a monopoly of force leads to
the denial of natural rights (by making it safe and profitable to disregard natural rights) and the
disregard of natural rights necessitates a monopoly of force to avoid frequent violent conflict.

For a society where there is plurality of force to work peaceably and well, there needs to be both
respect for natural rights and also a substantial number of people with a strong vested interest in
the rule of law.

A yeoman was the lowest rank of landowner, one who worked his own land or his families land,
in modern terminology a peasant farmer. A villain was a sharecropper, a farmer with no land of
his own, semi free, more free than a serf, though not directly equivalent to the modern free
laborer. Naturally yeomen had a strong vested interest in the rule of law, for they had much to
lose and little to gain from the breakdown in the rule of law. Villains had little to gain, but less to
lose. People acted in accordance with their interests, and so the word yeoman came to mean a
man who uses force in a brave and honorable manner, in accordance with his duty and the law,
and villain came to mean a man who uses force lawlessly, to rob and destroy.

In practice free societies only arose where there was no monopoly of force, the most notable and
important examples being seventeenth century England and eighteenth century North America.
England, in the late seventeenth and early eighteenth centuries, exemplified the medieval ideal of
liberty under law, and Kingly rule under law. In the English speaking world, government started
to display disregard for natural rights about fifty years after they introduced a police force, about
the time that people took power who had grown up in a state where police enforced the law

The best present day example of a society with strong social controls and weak government
controls, a society with plurality of force, is Switzerland. (Kopel, p278- 302) In peacetime the
Swiss army has no generals, no central command. Everyone is his own policeman. By no
coincidence Switzerland is also the best modern example of the right to bear arms. Almost every
house in Switzerland contains one or more automatic weapons, the kind of guns that the
American federal government calls “assault rifles with cop killer bullets”. Switzerland has strict
gun controls to keep guns out of the hands of children, lunatics and criminals, but every law
abiding adult can buy any kind of weapon. Almost every adult male owns at least one gun, and
most have more than one, because of social pressures and the expectation that a respectable
middle class male citizen should be well armed and skillful in the use of arms. It is also no
coincidence that respect for property rights in Switzerland is amongst the highest in the world,
possibly the highest in the world. Switzerland also has lower tax levels than any other
industrialized country.

Today the state is losing cohesion and its ability and willingness to maintain order and enforce
the law is visibly diminishing. We can once again expect to see armed conflict between the
modern equivalent of villains and yeomen. Indeed we are already seeing it. The recent L.A. riots
(April 1992, eight months ago as I write this) are often described as a race riot, and to some
extent they were. Yet there was as much violence by unpropertied Mexicans attacking Mexicans
possessing small businesses, as there was violence by unpropertied blacks attacking Koreans
possessing small businesses. Black shop owners had their shops looted and burnt by blacks in the
same way as Korean shop owners had their shops looted and burnt by blacks. This was an attack
by villains on yeomen, caused by the flight of the police, and only partially a black versus
Korean race riot.

Civil Society and the State

Plainly, some kinds of society are more natural than others. When the state attempts to impose an
unnatural form of society, it requires a large amount of coercive violence to impose this form,
and the state undermines its own cohesion in the process.

At the time that Locke wrote, natural law was about to become customary law, because the state
was disarmed and the people armed. For the most part the common law of Locke's time was
already consistent with natural law, but on some matters judges had to perform contortions to
render the form of common law consistent with the substance of natural law. Much common law
came from Roman law, and the law of the late roman empire was often quite contrary to natural
law. Freedom of association is a right under natural law, a crime under Roman law. Under the
law of the roman empire any association not compulsory was forbidden. In order to avoid
repudiating roman law without violating natural law, the English courts had to perform elaborate
contortions, and today the 59th sole prerogative of the holy roman emperor still lives on in
America, in the form of the concession theory, which holds that a corporation is a part of the
state, a portion of state power in private hands. This bizarre and convoluted legal fiction is highly
inconvenient for businessmen, vastly lucrative for lawyers, and is a dangerously potent weapon
in the hands of irresponsible bureaucrats and lawless judges.

Under the code of Justinian a corporation is a fictitious person created by the fiat of the holy
roman emperor. Under natural law a trust is created by the promises that the officers of the trust
make to it. (In the Latin of the early dark age “trustis” meant “band of comrades”.)
Hobbes argued that what we would now call civil society was nonexistent, or should not exist, or
existed only by the fiat of the state. He argued that voluntary and private associations should be
suppressed, as a threat to the power of the state, and hence a threat to order, or should only exist
as part of the apparatus of the state.

Locke argued that the legitimate authority of the state was granted to it by civil society, that the
state existed by the power of civil society, that this was its source of power morally and in actual
fact.

Until the twentieth century Locke's position was widely accepted as self evident. When the state
was unarmed and the people armed, as in eighteenth century England and America, it was indeed
self evident. During the nineteenth century the utilitarians and the absolutists argued that the state
derived its power from its capacity for large scale force, and only that, and that in order to
impose the greater good on reluctant groups and individuals the state should have a total and
absolute monopoly of all force. They therefore argued that the power and authority of the state
came from force alone, and should come from force alone, that the state did not derive its
substance from the civil society, that what appeared to be private and voluntary associations in
reality derived their cohesion from the power of the state, and therefore the state could and
should remake them as it willed, that contracts derived their power from the coercion of the state,
not from the honor of the parties to the contract, and therefore the state could decide what
contracts were permissible, and had the power and the right to remake and change existing
contracts.

In the twentieth century this view came to widely accepted. People came to believe that civil
society only existed by fiat of the state, that the state existed because its army and police were
armed, and the people were unarmed, that the state existed by force. Even people who loved
freedom, such as Hayek, reluctantly accepted this idea as true.

During decolonization the U.N. created governments in accordance with this false idea, the idea
that all a state required to exist was firepower superior to that of private citizens, and that with
superior firepower it could create a civil society, if needed, by fiat. The newly created
governments attempted to remake or eliminate civil society in accordance with this false idea.

As a result of this false idea, in the third world and in the former soviet empire, a number of
governments have collapsed or are close to collapse. Leviathan derives his cohesion from civil
society, Without a strong civil society the police, the army, the bureaucracy and the judiciary tend
to dissolve into a mob of individual thieves and hoodlums, each grabbing whatever he can, and
destroying whatever he cannot. It is civil society that holds the state together. The state does not
hold civil society together. Civil society is not a creation of the state. The state is a creation of
civil society.

Locke has been proven right, Hobbes proven wrong, by an experiment much vaster and bloodier
than that of Critias, but equally clear and decisive.

Many states have attempted to use something other than the civil society to provide the glue that
hold them together, to provide them with the cohesion they need. Some have succeeded for a
time, usually by using religion or the personal charisma of the leader in place of civil society.
Those rulers that succeeded in using these substitutes put very great effort into their substitutes,
showing that they were conscious of the weakness of their building materials, and, more
importantly, showing that they were conscious that the state cannot hold itself together. It must
be held together by something external to itself. It cannot give order to the rest of society, it must
be given order by something outside itself.

Rulers that use something other than civil society to provide cohesion for their states are in
practice a danger to their neighbors, and an even greater danger to their subjects. For this reason
civil society is the only legitimate material from which a state may be made. A state based on
something else is illegitimate. The neighbors of such states rightly and reasonably regard
themselves as threatened, and so they should seek, and for the most part they have sought, to
undermine, subvert, corrupt, and destroy such states, and to assassinate their rulers. History has
shown that not only was Locke correct factually, he was also correct morally. Not only are states
normally based on civil society, they should based on civil society.

The Soviet Union used the religion of communism to give their state cohesion, while the state
obliterated civil society and physically exterminated the kulaks (the Russian equivalent of the
English yeoman). When the rulers had faith, they were a danger to their neighbors. When they
lost their faith their empire eventually fell, and their statist society is collapsing as I write,
showing that democracy without economic liberty is worthless and unworkable, whilst Chile,
Taiwan, and Thailand show that economic liberty eventually leads to all other liberties, because
most natural rights are derived from the right to property. A civil society can only exist if there is
a reasonable degree of economic freedom, if property rights are respected.

Modern opposition to natural law and natural rights.

During the nineteenth century the advocates of limitless state power made a comeback with new
rhetoric, (the utilitarians) or the same old rhetoric dressed in new clothes), and in the twentieth
century they were politically successful, but militarily unsuccessful.

The absolutists keep adopting new names as each old name starts to stink, but in the nineteenth
century, the time when they were intellectually most successful, they mostly called themselves
romantics, identifying themselves with the then fashionable artistic and cultural movement,
although most of the political “romantics” were no more talented at poetry or painting than Hitler
was, and most of the real romantics were not political absolutists, far from it. When the fascists
came to power these totally disappeared, mostly calling themselves relativists. The name
relativist failed to shake the stink of the gas ovens where the Jews were exterminated, and they
are changing it yet again. Since the extermination camps set up again, in what used to be
Yugoslavia, relativists have almost disappeared. Soon there will be few relativists, they will all
be Post Modernists, or some such.
The absolutists argue that because people have different conceptions of what counts as right and
wrong. they need a supreme power to forcibly define justice, and without that definition they
wind up in conflict.

It logically follows from this that since people tend to create and impose a concept of justice and
right by interacting with each other and by forming the associations that constitute civil society,
then all of civil society must be subordinated to the ruler, so that his arbitrary and absolute
definition of justice shall suppress all others.

By this reasoning every decision where we judge others and act accordingly must be made under
the supervision of the state, which means that every aspect of civil society must subordinated to
power of the state. (Absolutists phrase it differently, saying that every aspect of society must be
provided with a common arbitrary definition of justice by the state, mere men being incapable of
knowing the difference)

Hobbes concept of inalienable rights and the fascists concept of natural law is just as logical as
the usual concepts of inalienable rights and natural law, indeed more logical. We cannot decide
between these two different conceptions of natural law by pure reason, but we can easily decide
by appeal to facts.

If disagreement on the nature of good is a common cause of violent conflict, then the absolutists
are correct. If violent conflict is almost always a result of ordinary everyday uncomplicated,
easily recognizable evil, then natural law is correct.

As Locke pointed out in his essay on toleration, holy wars are not about the true path to
salvation, they are just like any other war. A group defines another as enemy, and uses organized
violence to steal their land and gold. Their cause is not differing conceptions of the good, but
simple uncomplicated evil. Saint Thomas Aquinas pointed out the same thing four hundred years
before Locke, though he expressed himself more diplomatically

Disagreement on the nature of the good is only a problem with minor and unimportant matters,
not worth fighting over, and when the state is absent or weak, precedent on such matters swiftly
becomes customary law. For example on the American frontier conflict consisted of mostly of
fair fights conducted more or less in accordance with the code duello, and the rest was mostly
straightforward uncomplicated ordinary everyday evil, simple crime, no deep philosophizing
required.

The Lex Mercatoria, the customary law governing trade between different jurisdictions, shows
that people have from diverse cultures and languages have no great difficulty in agreeing on what
is lawful, in order to conduct business with each other. (B.L. Benson, RC Ellickson).

If the state abandons the principle that the law should be general and uniform, and instead
concocts a vast multitude of special particular rules, treating one category of person very
differently from another, so that one type of property can be seized in one circumstance, and
another kind in another circumstance, so that a particular category of person is given a monopoly
privilege of some category of business, such as taxi driving and others are excluded or have to
work for the privileged and hand over the bulk of their takings to them, then in that case, in the
case where generality and uniformity are abandoned, then indeed there can be no agreement - not
because men do not know what is just, but because such rules are unjust. When the rules are very
particular and non uniform, then the particular groups harmed or benefited by particular rules
will come into severe conflict, and this will make it necessary for the state to intervene and
supervise in a multitude of matters that should be private matters between one man and another.
It will become necessary for the state to take over and supervise civil society in detail.

The more a government violates the principles of uniformity and generality of the law, the more
arbitrary and complex its laws become, then the more it comes to resemble an absolutist
government, and the more it suffers from problems for which political absolutism appears to be
the solution.

Every so often, a ruler such as King James II or Adolf Hitler, attempts to put the theories of the
absolutists into effect. The theories and doctrines are immediately seen by their true face, and
everyone utterly abhors them.

The absolutists then concoct a new name, and dress their doctrines in new plumage so that they
sound like the normal actions of the state to sustain the rule of law, rather than what they truly
are, the use of violence by the state to crush the rule of law.

Regardless of the name, and regardless of the rhetorical flourishes used to make the doctrine
sound different from what it is, their doctrine remains the same: that justice is whatever courts
do, that any law whatsoever is lawful, that right and wrong is what the law says it is and the law
is whatever the nation says it is. This is the doctrine of absolutism, and anyone who advocates
this doctrine is an absolutist, no matter how many names he thinks up for himself. Because these
ideas acquired a bad odor in the seventeenth century, people are always finding new and different
ways to express these ideas, so that they sound different, whilst remaining the same, but each
new form of expression again acquires a bad odor when some ruler puts it into action.

The doctrine called relativism is the same as seventeenth century absolutism, but the rhetoric that
the “relativists” used to defend it sounds superficially like the rhetoric used by the opponents of
absolutism, just as the name sounds as if they are opponents of absolutism. In particular, the
“relativists” aped John Locke's Letter concerning Toleration, but where Lock was arguing for the
liberty of the citizen, the “relativists” used similar sounding language to argue for the license of
nations. The “relativists” opposed Locke, while draping themselves in Lockean symbols.

In the same way the “Post Modernists” use a name that claims that their doctrine is entirely new
and unconnected with what went before, and they claim that to examine modern doctrines and
compare them to medieval doctrines is a foolish waste of time (“Studying dead white males”),
and that one should not compare the current doctrines of “Post Modernists” with the earlier
doctrines, even earlier doctrines preached by the same people. When they defend their two
thousand year old positions with three hundred old arguments, they liberally decorate their
arguments with meaningless and irrelevant references to the latest fashions and newest music
stars, so as to give the sound and appearance that these doctrines and arguments are brand new,
and absolutely unconnected to earlier doctrines.
The absolutists/ romantics/ relativists/ post modernists continually change their name and
plumage in a vain effort to escape their past, but the stink of piles rotting dead lingers on them.

The utilitarians have a more plausible and attractive appearance. They say that any act of force
and coercion by the state is proper and lawful if it aims for the greatest good of the greatest
number. Sounds pleasant and reasonable, does it not? Such a doctrine would be sound if the
world were not what it is. and we were not as we are. It would be a fine doctrine if humans were
intelligent bees instead of intelligent apes, but we are not, and it is not.

It is not sensible to ask: How shall “we” act to maximize “our” happiness? This is a nonsense
question because individual desires necessarily conflict. The sensible question is: Given that
individual desires conflict, how can we avoid too much violence? We can keep the peace
collectively. It is impossible to pursue happiness collectively

Utilitarianism has two serious problems, problems that most utilitarians regard as advantages.
The idea of the greatest good for the greatest number implies that someone should be in charge,
with the authority and duty to sacrifice any one persons property, liberty, and life, for the greater
good. It also assumes that a persons good is knowable, and that other people can judge this good
for him, make decisions on his behalf, and balance that good with other peoples good. Since any
one person is expendable, then there can be no such thing as human rights, as Bentham frankly
argued. Clearly the doctrine of the greatest good is going to be highly attractive to those
intellectuals who envisage themselves as being in charge of deciding what is good for other
people, deciding whose property shall be confiscated for the greater good, who shall be
imprisoned for the greater good, or for his own good.

Many people have attempted to construct utilitarian arguments for limiting the authority of the
state, most notably John Stuart Mill, but their arguments are always feeble, implausible, strained,
and forced. It is even difficult to make a convincing utilitarian argument that rape is unlawful.
Feminist utilitarians who attempt to construct utilitarian arguments against rape have been forced
to make unreasonable assumptions about males and male sexuality. The “rights” deduced by
these convoluted, elaborate, and unconvincing rationalizations are not rights at all, but are akin to
what some utilitarians call “positive rights”.

Utilitarian critics of socialism find themselves arguing that socialism leads to slower economic
growth, when it is clear that in their hearts what they want to argue is that socialism leads to
slavery and lawless violence by the state, but they cannot express the thought within a utilitarian
framework, because slavery and lawless state violence are meaningless concepts within
utilitarianism.

Utilitarianism contains false implicit assumptions about the nature of man and the nature of
society, and these false assumptions lead utilitarians to the absurd conclusion that a good
government should create and enforce a form of society that in practice requires extreme
coercion and intrusive supervision by a vast and lawless bureaucracy, leading to events and
consequences very different to those intended.
What utilitarians mean by society is the exact opposite of “civil society”. Utilitarians continually
use phrases like: “Society wants ...”, “Society creates this rule in order to ...” Utilitarians
imagine, consciously or subconsciously that society exists as reified entity, a supreme being
capable of itself having desires, ends, and means, capable of consciously planning specific
measures to achieve specific desired goals.

This single entity is above the selfish individualism of ordinary mortals, and so rightfully
possesses the limitless right to use force and coercion. They imagine that this being would
welcome the enforcement of the rules that it commands. If this divine being existed, then
utilitarianism would make sense, but there is no such entity.

Actual individual people need no rules to force them to pursue their own ends, and when rules
are enforced on them, violating their rights for the sake someone else's ends, they invariably
surprise the utilitarians by vigorously resisting such rules, thus a state that bases its legitimacy
and cohesion on utilitarian principles rather than on natural rights and the rule of law, requires a
very high level of violence and coercion, violence that tends to constantly increase and become
more severe.

The greater good is unknowable because “Society” is not a conscious entity capable of
experiencing that good. Attempts to create a simulation of this deity, using elections and like
methods, have been seriously unsuccessful. The state tends to behave remarkably as if it was
simply a group of mere mortals, men with their own urgent needs and desires, fallible, weak, and
prone to evil, pursuing their own personal goods, no different from any other organization.

Plainly therefore the state is just another group of people, and must rightfully be subject to the
same law as any other person or group of people. It has no superior right to use force to achieve
its goals, and if you grant it such a right, it will in the end result in the loss of your property and
in slavery.

“Society” does not exist, rights do exist, not as arbitrary fiats of the state as the utilitarians claim,
but inherently as a result of the nature of man. No conflict exists between civil order and
individual rights. Both concepts are based on the same fundamental principles.

The real issue is not “what is the nature of good” as utilitarians pretend. The real issue is: Are
rights a discovery by individuals that enable them to get along peaceably with other individuals,
or are they a creation of a supreme being such as a reified society or reified state, that imposes
peace on a vicious multitude with no inherent knowledge of good and evil, thus forcing on them
the peace that slaves of a common master possess.

Today instead of frankly arguing that human rights are nonsense, as Bentham did, modern
utilitarians use elaborate euphemisms, such as “positive rights” and “positive freedom”. No two
people seem to mean the same thing when they make distinction between positive and negative
rights and liberties, and their meanings seem to change rapidly from one paragraph to the next.
The effect of this supposed distinction is always to destroy the meaning of “liberty” and “right”,
and usually to legitimize as slavery as liberty. This supposed concept is mere fog.
Often a “positive right” is in practice the precise opposite of a right. A “negative right” is the
right to be left alone, for example “An Englishman's home is his castle”, “freedom of speech”. A
“positive right” is usually a government guarantee that it will supervise, direct, and control you
for your own good, for example the “right to employment”, of which Marxists are so fond. (Or
used to be fond back in the days when Marxists existed outside American universities.) You will
notice that the “right to employment” enjoyed by the workers on Cuban sugar plantations is in
practice very similar to the “right to employment” that they enjoyed when they were slaves on
those plantations. If they run away from the employment that the benevolent state has so kindly
assigned to them, they will be hunted down, and, if captured, returned, beaten, and set to work
again. In the same way the “right to employment” enjoyed by the workers on Russian collective
farms was very similar to the “right to employment” that they enjoyed on these farms when they
were serfs. Of course these modern slaves also have the “right” to a guaranteed fair wage, and so
forth. Unfortunately they are not guaranteed that there will be anything in the shops for them to
buy with their guaranteed fair wages. Indeed in rural areas they are not guaranteed there will be
any shops at all. They are not permitted to go to the shops that the elite goes to, and they are not
permitted to travel any significant distance from their place of employment, rendering their
“salaries” utterly meaningless. “Positive rights” ape the forms of a free society, without the
substance.

Since the fall of communism we have heard less talk about positive rights and positive freedoms.
A right is only a right if, as with the rights to life, liberty, and property, you can rightfully use
necessary and sufficient force to defend yourself against those who interfere with your exercise
of that right. A right is no right at all if it is granted to you by the benevolence of your masters.

Authoritarian utilitarians started by trying to transform the meaning of “good”, and they have
continued to try, with some success, to change the meaning of words so as to make it impossible
to express thoughts that question the legitimacy and authority of the state. They have partially
succeeded with “law”, They are having some success with the word “right”. Thus in America
civil rights now means almost the opposite of natural right. For example being for “gay rights”
now means that you are opposed to freedom of association. Being in favor of freedom of
association is now understood to mean that you are against the right of privacy. It is difficult to
express the idea that the state should neither force people to accept homosexuality, nor use force
to suppress homosexuality. It is now difficult to express the idea that sexuality is not the proper
business of the state, that force and violence is the proper business of the state, not sin or social
exclusion. This perversion of the word “rights” makes everything the business of the state,
directly contrary to the normal meaning of “right”. Some people today find it very difficult to
comprehend the meaning of the ninth amendment, because the language has been so perverted as
to make such subversive ideas inexpressible.

The utilitarians have constructed an artificial language in which it is impossible to express such
concepts “the rule of law”, “natural rights”, or any idea or fact that would reject the limitless,
absolute, lawless and capricious power of the state, and they seek to impose that language on the
world.

Utilitarians usually argue in the same way that Marxists and behaviorists argue. They translate
any statement you make into utilitarian speak, and then state their translation: “What you are
really saying is...”. Since utilitarian speak is incapable of expressing any statement that would
contradict the limitless and absolute power of the state, your statements are turned into nonsense,
and they then contemptuously point out that what you are saying is nonsense.

How could one express in utilitarian speak the idea that the condemnation orders issued by the
government against home owners in Dade county September 1992 were unlawful, that the home
owners had the right and the duty to resist attempts to evict them with all force necessary, that
their effective and successful resistance was lawful regardless of what pieces of paper the
government manufactured? If I attempted to say this in utilitarian speak I would end up saying
that the government had not done its paper work correctly, or that government reallocation of
land would be suboptimal!

When a utilitarian attempts to speak about such matters he wants to claim that the government
broke its own “rule based procedures for property allocation” (rule based utilitarianism), in order
to conceal from himself his own intuitive knowledge that the government acted lawlessly. His
rationalization is plainly false: The governments actions were a result of consistently applying
the governments utilitarian rules on substandard housing. The hurricane had made everyone's
housing substandard. The government obeyed their own unlawful rules, violating the rights of
their subjects. The violent wrath of their subjects was so great, that the government back tracked
and chose to respect the property rights of their subjects, in violation of their own “rule based
procedures for property allocation.”

Those of us who seek to protect and restore freedom must avoid using the words our enemies
seek to impose on us. The only way to escape from this trap is to use the language of natural law,
the language with which a free society was envisioned and created, the words for which so many
people killed and died. If we submit to using words that prevent us from expressing the thought
of limits to government power and authority, then there will be no limits to government power
and authority.

Words carry with them systems of ideas. The only system of ideas capable of repudiating
limitless and absolute state power is natural law. It is impossible to speak about limits to the
power and authority of the state except in the language with which such ideas were originally
expressed. No other language is available.

If someone rejects the language of natural law, refuses to use such words, pretends not to
comprehend them, and rejects them as meaningless, then he is not interested in using words as a
medium of communication. He is merely using them as a method of control. It is pointless to
attempt to communicate with such a person.

It most doubtful that other peoples good is knowable in principle. It certainly is not knowable in
practice. In practice, whenever any organization makes a serious attempt to ascertain the greater
good it is submerged in a flood of paperwork, and to defend itself against this flood of paper it
strangles everything it touches in red tape. It unavoidably finds itself imposing, by increasingly
lawless violence, a procrustean and arbitrary concept of the good. If I take a slight detour on my
way to work I go through rent controlled East Palo Alto, where I can watch my tax dollars at
play, and observe this destructive process in operation.
The most dramatic and devastating demonstration of the difficulty of knowing the greater good,
and the most famous and best known, was of course the attempt of the Cambodian government
to increase the rice harvest by central direction of irrigation. This led to irrigation ditches being
dug in nice neat straight lines without regard to small scale topography, with the result that they
failed to transport water, it led to wetland rice being planted on land that remained dry, dry land
rice being planted on land that became submerged, and so on and so forth. The peasants,
foreseeing death by starvation if they continued to pursue the greater good, selfishly sought to
pursue their own individual good, contrary to the decrees of their masters. Their masters
imagined themselves to be responsible for feeding the peasants, so they were reluctantly forced
to use ever more savage terror and torture to force the starving peasants to pursue the greater
good. For the sake of the greater good, the peasants were forced to watch their starving children
murdered, for the sake of the greater good they were forced to maim and break those they loved
with crude agricultural implements, for the sake of the greater good they were brutally and
savagely tortured, for the sake of the greater good they died horrible and degrading deaths in vast
numbers, all for the greatest good of the greatest number.

Similar, though less extreme, events have occurred throughout the vast majority of the third
world. Cambodia was merely the most monstrous of these of these events, but there have been
many others, smaller in scale but equal in horror and depravity. In countries where people live
close to hunger, most of the third world, state intervention to improve people lives has invariably
resulted in mass starvation, these catastrophes being most photogenic in Africa. This mass
starvation has often resulted in resistance the these benefits and improvements, which has
resulted in extraordinarily brutal terror and torture, to extort continued submission to government
aid. Especially entertaining is the suffering of the unfortunate recipients of government to
government aid. One notable example is the World Bank resettlement program in Ethiopia,
where hundreds of thousands of people who failed to appreciate the generous aid their Marxist
government provided them were resettled in extermination camps built by the World Bank, and
shipped to those camps in cattle trucks supplied by the World Bank (Bandow, Bovard, Keyes).
Another amusing example of your taxes at work providing the greatest good for the greatest
number was the World Bank's Akosombo dam project (Bovard, Lappe 35 37). Most attempts to
determine the greatest good for the greatest number have had similar outcomes, it is just that in
affluent societies the consequences are less flagrant, less brutally obvious. In a poor society an
attempt to provide the greatest good for the greatest number usually results in starvation, death,
torture, and maiming. In an affluent society it merely produces poverty, fatherless children,
homelessness, street crime, and discreet police violence.

Stalin tried simple utilitarianism until 1921, meta rule based utilitarianism from 1921 to 1928
and rule based utilitarianism from 1928 onwards. The problem was not errors specific to
Marxism, as non Marxist socialists argue. Nor was it errors specific to socialism, as non socialist
utilitarians argue. The problem was the basic assumption that the state could pursue good ends
by force and coercion. In the social fabric, means are ends.

In order to argue that Stalin's analysis of utility was incorrect, utilitarians find themselves
rationalizing that the Soviet Union failed because of economic errors. But this is plainly false.
The Soviet Union did not lose cohesion because of economic errors. Loss of cohesion came first,
economic problems came later. It suffered economic stagnation as a result of loss of social
cohesion.

Mises criticism of the difficulty of economic calculation under socialism is true but irrelevant.
No doubt the central plan was full of defects, but the Soviet economy did fine despite the central
plan. The economy only began to falter when government organizations started raiding each
other. Armed raids by one government agency to seize stuff under the control of another
government agency became commonplace, rendering the plan irrelevant.

Mises theory of human action is correct, but the important thing is not to apply it merely to
allocation of resources, as Mises did, but to questions of good and evil, lawful and unlawful, as
Hayek did. Knowledge of the rights of man is more important than knowledge of what area
should be planted with cabbages.

Whether a government consciously intends to destroy free enterprise or not, free enterprise
cannot survive the destruction of the rule of law by the state, as Hayek pointed out. The rule of
law is not merely a matter of the government applying its own rules in a consistent manner to all
its subjects, as Stalin did in the great terror. The rule of law is not rule based utilitarianism, it is
fundamentally incompatible with any form of utilitarianism. The concept of the rule of law is
inexpressible in utilitarian speak, and is meaningless within the utilitarian philosophy.

Even if it were possible in principle to determine the good of others, and impose that good on
them by force, history shows us that it is not practical. When one considers utilitarianism in real
life, it necessary to laugh, so as to avoid weeping.

Whereas the absolutists produce mere hills of corpses, and then hygienically process the hills
into useful products like soap and lampshades, the utilitarians produce them in mountains, but
the utilitarians shake the stench more easily, blandly professing their good intentions and
casually waving away the tens of millions of murdered women and children.

Whenever the ugly ideas of the absolutists are put into practice the absolutists change their name
and rhetoric, from absolutist to romantic to relativist to post modernist, Whenever the pleasant
and attractive ideas of the utilitarians are put into practice, the utilitarians shrug their shoulders
and say, “but that is not what we intended, it was all a mistake, Stalin's analysis of utility was
faulty. If our ideas were put into action properly all would be well,” claiming that professed good
intentions outweigh any number of foul deeds. By their fruit you will know them. Since the
Cambodian irrigation project and the World Bank African assistance program the utilitarians
have been unable to shake the stink quite so easily, and some utilitarian factions are now trying
out new names. The phrase “the greater good” is at last starting to sound like a polite euphemism
for lawless state violence. People are becoming embarrassed to use it, whereas a decade or so
ago there was no such embarrassment.

Prediction
In the west, for the last four hundred years, society been shaped by ideas, with a lag of roughly
one human lifetime between the idea and the social order. Today statism continues to grow at an
ever accelerating rate, but the rationalizations that justified statism are no longer believed. The
professors can fail students who disagree with them, but they can no longer convince. One can
now endorse facts that tend to support natural law in a university without facing physical danger,
which was not the case ten years ago. E.O. Wilson was physically attacked because his work
could imply that some social orders were natural and some unnatural. Tooby and Cosmides were
not attacked. The professors still summon the mob to attack the unbelievers, but the mob no
longer comes.

Tooby and Cosmides do not put their politics in their science, for good politics does not make
good science, but they do put their science in their politics, for good science does make good
politics. They have campaigned for most of the things that Wilson was falsely accused of
campaigning for.

The state commands and spends ever more wealth, intrudes into our lives in ways that are ever
more intimate and detailed, exercises ever greater power, backed by ever more severe
punishments, often for deeds that it only declared illegal a few years ago, while at the same time
the states capacity to coerce, to collect taxes, and to generate legitimacy continues to decline at
an ever accelerating rate. Ever fewer people listen to political speeches, or feel identification
with the winning party. People are less inclined to imagine that voting can make any difference,
less inclined to believe that legislation or courts possess moral authority. Both trends are driven
by simple and powerful forces that are easy to understand. Numerous books, both serious (public
choice theory) and humorous, and even a television series (“Yes Minister”) have explained these
forces and why they are unstoppable. These two trends will inevitably collide in the not very
distant future, are already beginning to collide. The states every increasing use of lawless
coercion will collide, is already colliding, with its ever decreasing capacity to coerce. Dade
County, the citizens militia in the L.A. riots, the tax revolt in Italy, all foreshadow the coming
collision. The citizens of California noticed that the only Koreans who were murdered in the
L.A. riots were unarmed. There were no casualties amongst those Koreans who defended their
property with gunfire. Gun sales have risen accordingly.

This collision will recreate, over several decades, a situation where there is plurality of force.
Free societies have only arisen where there is plurality of force. Of course plurality of force does
not guarantee a free society. It merely makes it possible. Social collapse is also possible. During
the coming crisis we must keep our eyes fixed on the simple ancient truths of natural rights and
natural law. We must discriminate between those who use force lawfully and those who use force
unlawfully, and must act accordingly, we must discriminate between those who deal honorably
and those who deal dishonorably, and must act accordingly. If we do that then we will have a
functioning civil society.

The Greeks, in their war with the Persians, demonstrated that the true unity that comes from
common adherence to the rule of law is more powerful than the appearance of unity that comes
from common submission to centralized authority.
Aristotle (350BC) Politics, Book 1 Chapter 2

Bandow, Doug. (1989). “What is still wrong with the world bank?” Orbis (Winter): 73 - 89

Barkow, JH, Cosmides L, Tooby J. (1992) “The adapted mind, Evolutionary psychology and the
generation of Culture”, Oxford University Press.

Benson, B.L, (1990)“The enterprise of law, justice without the state” Pacific Research Institute,
ISBN 0-936488-29-8

Bovard, James. (1988). “The World Bank vs. the World's Poor.” The Freeman (May): 184 - 187

Ellickson, Robert C., (1991). “Order without Law, How Neighbors Settle Disputes” Harvard
University Press.

Keyes, Alan. (1986). “Ethiopia: The U.N.'s Role.” Statement by the Assistant Secretary for
International Organization Affairs before the Subcommittee on African Affairs of the Senate
Foreign Relations Committee, Washington D. C., US. Department of State, Current Policy No.
803 (March 16): 2

Kopel, David B., (1992) “The Samurai, the Mountie, and the Cowboy” 278 -373

Lappe, David et al. (1981). Aid as an Obstacle San Francisco Institute for Food and Development
Policy.

Locke, John, (1689) A letter concerning toleration

Locke, John, (1690) Two Treatises of Government

Reeve, H.K. & Nonacs, P., (1993) Nature, 363, 503

Xenophon. Memorabilia
SEPARATE OPINION

PUNO, J.:

While I concur in the result of the ponencia of Mr. Justice Carpio, the ruling on whether or not
private respondent Dimaano could invoke her rights against unreasonable search and seizure and
to the exclusion of evidence resulting therefrom compels this humble opinion. The ponencia
states that “(t)he correct issue is whether the Bill of Rights was operative during the interregnum
from February 26, 1986 (the day Corazon C. Aquino took her oath as President) to March 24,
1986 (immediately before the adoption of the Freedom Constitution).” [1] The majority holds that
1

the Bill of Rights was not operative, thus private respondent Dimaano cannot invoke the right
against unreasonable search and seizure and the exclusionary right as her house was searched
and her properties were seized during the interregnum or on March 3, 1986. My disagreement is
not with the ruling that the Bill of Rights was not operative at that time, but with the conclusion
that the private respondent has lost and cannot invoke the right against unreasonable search and
seizure and the exclusionary right. Using a different lens in viewing the problem at hand, I
respectfully submit that the crucial issue for resolution is whether she can invoke these rights in
the absence of a constitution under the extraordinary circumstances after the 1986 EDSA
Revolution. The question boggles the intellect, and is interesting, to say the least, perhaps even
to those not half-interested in the law. But the question of whether the Filipinos were bereft of
fundamental rights during the one month interregnum is not as perplexing as the question of
whether the world was without a God in the three days that God the Son descended into the dead
before He rose to life. Nature abhors a vacuum and so does the law.

I. Prologue

The ponencia suggests that the Constitution, the Bill of Rights in particular, is the only source of
rights, hence in its absence, private respondent Dimaano cannot invoke her rights against
unreasonable search and seizure and to the exclusion of evidence obtained therefrom. Pushing
the ponencia’s line of reasoning to the extreme will result in the conclusion that during the one
month interregnum, the people lost their constitutionally guaranteed rights to life, liberty and
property and the revolutionary government was not bound by the strictures of due process of law.
Even before appealing to history and philosophy, reason shouts otherwise.

The ponencia recognized the EDSA Revolution as a “successful revolution” [2] that installed the
2

Aquino government. There is no right to revolt in the 1973 Constitution, in force prior to
February 23-25, 1986. Nonetheless, it is widely accepted that under natural law, the right of
revolution is an inherent right of the people. Thus, we justified the creation of a new legal order
after the 1986 EDSA Revolution, viz:

1[1] Decision, p. 26.

2[2] Id.
“From the natural law point of view, the right of revolution has been defined as ‘an inherent right
of a people to cast out their rulers, change their policy or effect radical reforms in their system of
government or institutions by force or a general uprising when the legal and constitutional
methods of making such change have proved inadequate or are so obstructed as to be
unavailable.’ (H. Black, Handbook of American Constitutional Law II, 4th edition, 1927) It has
been said that ‘the locus of positive law-making power lies with the people of the state’ and from
there is derived ‘the right of the people to abolish, to reform and to alter any existing form of
government without regard to the existing constitution.’ (‘Political Rights as Political Questions,
The Paradox of Luther v. Borden’, 100 Harvard Law Review 1125, 1133 [1987])” [3] 3

It is my considered view that under this same natural law, private respondent Dimaano has a
right against unreasonable search and seizure and to exclude evidence obtained as a consequence
of such illegal act. To explain my thesis, I will first lay down the relevant law before applying it
to the facts of the case at bar. Tracking down the elusive law that will govern the case at bar will
take us to the labyrinths of philosophy and history. To be sure, the difficulty of the case at bar
lies less in the application of the law, but more in finding the applicable law. I shall take up the
challenge even if the route takes negotiating, but without trespassing, on political and religious
thickets.

II. Natural Law and Natural Rights

As early as the Greek civilization, man has alluded to a higher, natural standard or law to which a
state and its laws must conform. Sophocles unmistakably articulates this in his poignant literary
piece, Antigone. In this mid-fifth century Athenian tragedy, a civil war divided two brothers, one
died defending Thebes, and the other, Polyneices, died attacking it. The king forbade
Polyneices’ burial, commanding instead that his body be left to be devoured by beasts. But
according to Greek religious ideas, only a burial -even a token one with a handful of earth- could
give repose to his soul. Moved by piety, Polyneices’ sister, Antigone, disobeyed the command of
the king and buried the body. She was arrested. Brought before the king who asks her if she
knew of his command and why she disobeyed, Antigone replies:

“. . .These laws were not ordained of Zeus,

And she who sits enthroned with gods below,
Justice, enacted not these human laws.
Nor did I deem that thou, a mortal man,
Couldst by a breath annul and override
The immutable unwritten laws of heaven.
They were not born today nor yesterday;
They die not; and none knoweth whence they sprang.” [4] 4

Antigone was condemned to be buried alive for violating the order of the king. [5]5

3[3] Letter of Associate Justice Reynato S. Puno, 210 SCRA 589 (1992), p. 597.

4[4] Kelly, J., A Short History of Western Legal Theory (1992), p. 20, citing Antigone, pp. 453-
457.
Aristotle also wrote in his Nicomachean Ethics: “Of political justice part is natural, part legal –
natural, that which everywhere has the same force and does not exist by people’s thinking this or
that; legal, that which is originally indifferent, but when it has been laid down is not indifferent,
e.g. that a prisoner’s ransom shall be mina, or that a goat and not two sheep shall be sacrificed,
and again all the laws that are passed for particular cases, . . .” [6] Aristotle states that
6

“(p)articular law is that which each community lays down and applies to its own members: this is
partly written and partly unwritten. Universal law is the law of Nature. For there really is, as
every one to some extent divines, a natural justice and injustice that is binding on all men, even
on those who have no association or covenant with each other. It is this that Sophocles’ Antigone
clearly means when she says that the burial of Polyneices was a just act in spite of the
prohibition: she means that it was just by nature.” [7]
7

Later, the Roman orator Cicero wrote of natural law in the first century B.C. in this wise:

“True law is right reason in agreement with nature; it is of universal application, unchanging and
everlasting; it summons to duty by its commands, and averts from wrongdoing by its
prohibitions. And it does not lay its commands or prohibitions upon good men in vain, though
neither have any effect on the wicked. It is a sin to try to alter this law, nor is it allowable to
attempt to repeal any part of it, and it is impossible to abolish it entirely. We cannot be freed
from its obligations by senate or people, and we need not look outside ourselves for an
expounder or interpreter of it. And there will not be different laws at Rome and at Athens, or
different laws now and in the future, but one eternal and unchangeable law will be valid for all
nations and at all times, and there will be one master and ruler, that is, God, over us all, for he is
the author of this law, its promulgator, and its enforcing judge. Whoever is disobedient is fleeing
from himself and denying his human nature, and by reason of this very fact he will suffer the
worst penalties, even if he escapes what is commonly considered punishment.” [8] 8

This allusion to an eternal, higher, and universal natural law continues from classical antiquity to
this day. The face of natural law, however, has changed throughout the classical, medieval,
modern, and contemporary periods of history.

In the medieval times, shortly after 1139, Gratian published the Decretum, a collection and
reconciliation of the canon laws in force, which distinguished between divine or natural law and
human law. Similar to the writings of the earliest Church Fathers, he related this natural law to
the Decalogue and to Christ’s commandment of love of one’s neighbor. “The law of nature is
that which is contained in the Law and the Gospel, by which everyone is commanded to do unto

5[5] Rice, C., Fifty Questions on the Natural Law (1993), p. 31.

6[6] Aristotle, Nicomachean Ethics, Book V in the Great Books of the Western World, vol. 9
(Robert Maynard Hutchins, editor in chief, 1952), p. 382.

7[7] Aristotle, On Rhetoric, Book I, Chapter 13 in the Great Books of the Western World, vol. 9
(Robert Maynard Hutchins, editor in chief, 1952), p. 617.

8[8] Bix, B., “Natural Law Theory,” p. 224 in D. Patterson, A Companion to Philosophy of Law
and Legal Theory (1996).
others as he would wish to be done unto him, and is prohibited from doing unto others that which
he would be unwilling to be done unto himself.” [9] This natural law precedes in time and rank
9

all things, such that statutes whether ecclesiastical or secular, if contrary to law, were to be held
null and void. [10]
10

The following century saw a shift from a natural law concept that was revelation-centered to a
concept related to man’s reason and what was discoverable by it, under the influence of
Aristotle’s writings which were coming to be known in the West. William of Auxerre
acknowledged the human capacity to recognize good and evil and God’s will, and made reason
the criterion of natural law. Natural law was thus id quod naturalis ratio sine omni deliberatione
aut sine magna dictat esse faciendum or “that which natural reason, without much or even any
need of reflection, tells us what we must do.” [11] Similarly, Alexander of Hales saw human
11

reason as the basis for recognizing natural law [12] and St. Bonaventure wrote that what
12

natural reason commands is called the natural law. [13] By the thirteenth century, natural law was
13

understood as the law of right reason, coinciding with the biblical law but not derived from it. [14]
14

Of all the medieval philosophers, the Italian St. Thomas Aquinas is indisputably regarded as the
most important proponent of traditional natural law theory. He created a comprehensive and
organized synthesis of the natural law theory which rests on both the classical (in particular,
Aristotelian philosophy) and Christian foundation, i.e., on reason and revelation. [15] His
15

version of the natural law theory rests on his vision of the universe as governed by a single, self-
consistent and overarching system of law under the direction and authority of God as the
supreme lawgiver and judge. [16] Aquinas defined law as “an ordinance of reason for the
16

common good, made by him who has care of the community, and promulgated.” [17] There are
17

four kinds of laws in his natural law theory: eternal, natural, human, and divine.

First, eternal law. To Aquinas, a law is a dictate of practical reason (which provides practical
directions on how one ought to act as opposed to “speculative reason” which provides

9[9] Kelly, J., supra, p. 142, citing Decretum, D. I.

10[10] Id., citing Decretum, D. 8. 2, 9 ad fin.

11[11] Id., citing Aurea Doctons fo. 169.

12[12] Id., citing Felix Fluckiger, Geschichte des Naturrechtes (1954), i. 426-8.

13[13] Id.

14[14] Kelly, J., supra, pp. 142-143.

15[15] Id., p. 143.

16[16] Altman, A., Arguing About Law (2001), p. 51.

17[17] Aquinas, T., Summa Theologica I, II, Q. 90, art. 1 in the Great Books of the Western
World, vol. 20 (Robert Maynard Hutchins, editor in chief, 1952), p. 208.
propositional knowledge of the way things are) emanating from the ruler who governs a perfect
community. [18] Presupposing that Divine Providence rules the universe, and Divine Providence
18

governs by divine reason, then the rational guidance of things in God the Ruler of the universe
has the nature of a law. And since the divine reason’s conception of things is not subject to time
but is eternal, this kind of law is called eternal law. [19] In other words, eternal law is that law
19

which is a “dictate” of God’s reason. It is the external aspect of God’s perfect wisdom, or His
wisdom applied to His creation. [20] Eternal law consists of those principles of action that God
20

implanted in creation to enable each thing to perform its proper function in the overall order of
the universe. The proper function of a thing determines what is good and bad for it: the good
consists of performing its function while the bad consists of failing to perform it. [21]
21

Then, natural law. This consists of principles of eternal law which are specific to human beings
as rational creatures. Aquinas explains that law, as a rule and measure, can be in a person in two
ways: in one way, it can be in him that rules and measures; and in another way, in that which is
ruled and measured since a thing is ruled and measured in so far as it partakes of the rule or
measure. Thus, since all things governed by Divine Providence are regulated and measured by
the eternal law, then all things partake of or participate to a certain extent in the eternal law; they
receive from it certain inclinations towards their proper actions and ends. Being rational,
however, the participation of a human being in the Divine Providence, is most excellent because
he participates in providence itself, providing for himself and others. He participates in eternal
reason itself and through this, he possesses a natural inclination to right action and right end.
This participation of the rational creature in the eternal law is called natural law. Hence, the
psalmist says: “The light of Thy countenance, O Lord, is signed upon us, thus implying that the
light of natural reason, by which we discern what is good and what is evil, which is the function
of the natural law, is nothing else than an imprint on us of the Divine light. It is therefore evident
that the natural law is nothing else than the rational creature’s participation in the eternal
law.” [22] In a few words, the “natural law is a rule of reason, promulgated by God in man’s
22

nature, whereby man can discern how he should act.” [23] 23

Through natural reason, we are able to distinguish between right and wrong; through free will,
we are able to choose what is right. When we do so, we participate more fully in the eternal law
rather than being merely led blindly to our proper end. We are able to choose that end and make
our compliance with eternal law an act of self-direction. In this manner, the law becomes in us a
rule and measure and no longer a rule and measure imposed from an external source. [24] The
24

18[18] Freinberg, J. and J. Coleman, Philosophy of Law (6th ed. 2000), p. 19.

19[19] Aquinas, T., Summa Theologica I, II, Q. 91, art. 1, p. 208.

20[20] Kelly, J., supra, p. 143.

21[21] Altman, A., supra, p. 52.

22[22] Aquinas, T., Summa Theologica I, II, Q. 91, art. 2, p. 208.

23[23] Rice, C., supra, p. 44.

question that comes to the fore then is what is this end to which natural law directs rational
creatures?

The first self-evident principle of natural law is that “good is to be pursued and done, and evil is
to be avoided. All other precepts of the natural law are based upon this, so that whatever the
practical reason naturally apprehends as man’s good (or evil) belongs to the precept of the
natural law as something to be done or avoided.” [25] Because good is to be sought and evil
25

avoided, and good is that which is in accord with the nature of a given creature or the
performance of a creature’s proper function, then the important question to answer is what is
human nature or the proper function of man. Those to which man has a natural inclination are
naturally apprehended by reason as good and must thus be pursued, while their opposites are evil
which must be avoided. [26] Aquinas identifies the basic inclinations of man as follows:
26

“1. To seek the good, including his highest good, which is eternal happiness with God. 27
[27]

2. To preserve himself in existence.

3. To preserve the species - that is, to unite sexually.

4. To live in community with other men.

5. To use his intellect and will - that is, to know the truth and to make his own decision.” 28
[28]

As living creatures, we have an interest in self-preservation; as animals, in procreation; and as

rational creatures, in living in society and exercising our intellectual and spiritual capacities in
the pursuit of knowledge.” [29] God put these inclinations in human nature to help man achieve
29

his final end of eternal happiness. With an understanding of these inclinations in our human
nature, we can determine by practical reason what is good for us and what is bad. [30] In this
30

sense, natural law is an ordinance of reason. [31] Proceeding from these inclinations, we can
31

apply the natural law by deduction, thus: good should be done; this action is good; this action

24[24] Freinberg, J. and J. Coleman, supra, p. 23.

25[25] Aquinas, T., Summa Theologica I, II, Q. 94, art. 2, p. 222.

26[26] Id.

27[27] Rice, C., supra, p. 45, citing Summa Theologica, II, II, Q. 81, art. 6; see also Summa
Theologica, II, II, Q. 85, art. 1.

28[28] Id., citing T. E. Davitt, S.J., “St. Thomas Aquinas and the Natural Law”, Origins of the
Natural Law Tradition (1954), pp. 26, 30-31; Rommen, The Natural Law, p. 49; Summa
Theologica, I, II, Q. 94, art. 2.

29[29] Freinberg, J. and J. Coleman, supra, p. 24.

30[30] Rice, C., supra, pp. 45-46.

should therefore be done. [32] Concretely, it is good for humans to live peaceably with one
32

another in society, thus this dictates the prohibition of actions such as killing and stealing that
harm society. [33]
33

From the precepts of natural law, human reason needs to proceed to the more particular
determinations or specialized regulations to declare what is required in particular cases
considering society’s specific circumstances. These particular determinations, arrived at by
human reason, are called human laws (Aquinas’ positive law). They are necessary to clarify the
demands of natural law. Aquinas identifies two ways by which something may be derived from
natural law: first, like in science, demonstrated conclusions are drawn from principles; and
second, as in the arts, general forms are particularized as to details like the craftsman
determining the general form of a house to a particular shape. [34] Thus, according to Aquinas,
34

some things are derived from natural law by way of conclusion (such as “one must not kill” may
be derived as a conclusion from the principle that “one should do harm to no man”) while some
are derived by way of determination (such as the law of nature has it that the evildoer should be
punished, but that he be punished in this or that way is not directly by natural law but is a derived
determination of it). [35] Aquinas says that both these modes of derivation are found in the
35

human law. But those things derived as a conclusion are contained in human law not as
emanating therefrom exclusively, but having some force also from the natural law. But those
things which are derived in the second manner have no other force than that of human law. [36] 36

Finally, there is divine law which is given by God, i.e., the Old Testament and the New
Testament. This is necessary to direct human life for four reasons. First, through law, man is
directed to proper actions towards his proper end. This end, which is eternal happiness and
salvation, is not proportionate to his natural human power, making it necessary for him to be
directed not just by natural and human law but by divinely given law. Secondly, because of
uncertainty in human judgment, different people form different judgments on human acts,
resulting in different and even contrary laws. So that man may know for certain what he ought to
do and avoid, it was necessary for man to be directed in his proper acts by a God-given law for it
is certain that such law cannot err. Thirdly, human law can only judge the external actions of
persons. However, perfection of virtue consists in man conducting himself right in both his
external acts and in his interior motives. The divine law thus supervenes to see and judge both
dimensions. Fourthly, because human law cannot punish or forbid all evils, since in aiming to do
away with all evils it would do away with many good things and would hinder the advancement

31[31] Freinberg, J. and J. Coleman, supra, p. 24.

32[32] Rice, C., supra, pp. 45-46.

33[33] Altman, A., supra, p. 52.

34[34] Aquinas, T., Summa Theologica, I, II, Q. 95, art. 2.

35[35] Rice, C., supra, p. 24.

36[36] Freinberg, J. and J. Coleman, supra, p. 26; Altman, A., supra, p. 52.
of the common good necessary for human development, divine law is needed. [37] For example,
37

if human law forbade backbiting gossip, in order to enforce such a law, privacy and trust that is
necessary between spouses and friends would be severely restricted. Because the price paid to
enforce the law would outweigh the benefits, gossiping ought to be left to God to be judged and
punished. Thus, with divine law, no evil would remain unforbidden and unpunished. [38] 38

Aquinas’ traditional natural law theory has been advocated, recast and restated by other scholars
up to the contemporary period. [39] But clearly, what has had a pervading and lasting impact on
39

the Western philosophy of law and government, particularly on that of the United States of

37[37] Aquinas, T., Summa Theologica I, II, Q. 91, art. 4, p. 222.

38[38] Freinberg, J. and J. Coleman, supra, p. 30, citing Summa Theologica, I, II, Q. 91, art. 4.

39[39] An important restatement was made by John Finnis who wrote Natural Law and Natural
Rights published in 1980. He reinterpreted Aquinas whom he says has been much
misunderstood. He argues that the normative conclusions of natural law are not derived from
observations of human or any other nature but are based on a reflective grasp of what is self-
evidently good for human beings. “The basic forms of good grasped by practical understanding
are what is good for human beings with the nature they have.” The following are basic goods:
life (and health), knowledge, play, aesthetic experience, sociability (friendship), practical
reasonableness, and religion. (Bix, B., supra, pp. 228-229.) He claims that Aquinas considered
that practical reasoning began “not by understanding this nature from the outside . . . by way of
psychological, anthropological or metaphysical observations and judgments defining human
nature, but by experiencing one’s nature . . . from the inside, in the form of one’s inclinations.”
(Freeman, M.D.A. Lloyd’s Introduction to Jurisprudence [1996], p. 84, citing J. Finnis, Natural
Law and Natural Rights [1980], p. 34.)

Lon Fuller also adopted a natural law analysis of law and wrote that there is a test that a law must
pass before something could be properly called law. Unlike traditional natural law theories,
however, the test he applies pertains to function rather than moral content. He identified eight
requirements for a law to be called law, viz: “(1) laws should be general; (2) they should be
promulgated, that citizens might know the standards to which they are being held; (3) retroactive
rule-making and application should be minimized; (4) laws should be understandable; (5) they
should not be contradictory; (6) laws should not require conduct beyond the abilities of those
affected; (7) they should remain relatively constant through time; and (8) there should be a
congruence between the laws as announced and their actual administration.” He referred to his
theory as “a procedural, as distinguished from a substantive natural law.” (Bix, B., supra, pp.
231-232.)

Ronald Dworkin also occasionally refers to his approach as a natural law theory. Dworkin
postulates that along with rules, legal systems also contain principles. Quite different from rules,
principles do not act in an all-or-nothing way. Rather principles have “weight”, favoring one
result or another. There can be principles favoring contrary results on a single legal question.
Examples of these principles are “one should not be able to profit from one’s wrong” and “one is
America which heavily influenced the Philippine system of government and constitution, is the
modern natural law theory.

In the traditional natural law theory, among which was Aquinas’, the emphasis was placed on
moral duties of man -both rulers and subjects- rather than on rights of the individual citizen.
Nevertheless, from this medieval theoretical background developed modern natural law theories
associated with the gradual development in Europe of modern secular territorial state. These
theories increasingly veered away from medieval theological trappings [40] and gave particular
40

emphasis to the individual and his natural rights. [41]

41

One far-reaching school of thought on natural rights emerged with the political philosophy of the
English man, John Locke. In the traditional natural law theory such as Aquinas’, the monarchy
was not altogether disfavored because as Aquinas says, “the rule of one man is more useful than
the rule of the many” to achieve “the unity of peace.” [42] Quite different from Aquinas, Locke
42

emphasized that in any form of government, “ultimate sovereignty rested in the people and all
legitimate government was based on the consent of the governed.” [43] His political theory was
43

used to justify resistance to Charles II over the right of succession to the English throne and the
Whig Revolution of 1688-89 by which James II was dethroned and replaced by William and
Mary under terms which weakened the power of the crown and strengthened the power of the
Parliament. [44]
44

held to intend all the foreseeable consequences of one’s actions.” These legal principles are
moral propositions that are grounded (exemplified, quoted or somehow supported by) on past
official acts such as text of statutes, judicial decisions, or constitutions. Thus, in “landmark”
judicial decisions where the outcome appears to be contrary to the relevant precedent, courts still
hold that they were following the “real meaning” or “true spirit” of the law; or judges cite
principles as the justification for modifying, creating exceptions in, or overturning legal rules.
(Bix, B., supra, pp. 234-235.)

40[40] Jones, T., Modern Political Thinkers and Ideas (2002), pp. 112-113.

41[41] d’Entreves, A., Natural Law (2nd ed., 1970), pp. 52 and 57.

42[42] Rice, C. supra, p. 68, citing Aquinas, De Regimine Principum (On the Governance of
Rulers) (Gerald B. Phelan, transl., 1938), Book I, Chap. 2, 41.1. But Aquinas was also cautious
of the opportunity for tyranny of a king, thus he proposed that this power must be tempered,
perhaps similar to the modern day constitutional monarchy. (Rice, C. supra, pp. 68-69, citing
Aquinas, De Regimine Principum (On the Governance of Rulers) (Gerald B. Phelan, transl.,
1938), Book I, Chap. 6, 54.)

43[43] Patterson, C., The Constitutional Principles of Thomas Jefferson (1953), p. 47.

44[44] Macpherson, C. Editor’s Introduction to J. Locke’s Second Treatise of Government

(1980), pp. xx-xxi.
Locke explained his political theory in his major work, Second Treatise of Government,
originally published in 1690, [45] where he adopted the modern view that human beings enjoyed
45

natural rights in the state of nature, before the formation of civil or political society. In this state
of nature, it is self-evident that all persons are naturally in a “state of perfect freedom to order
their actions, and dispose of their possessions and persons, as they think fit, within the bounds of
the law of nature, without asking leave or depending upon the will of any other man.” [46] 46

Likewise, in the state of nature, it was self-evident that all persons were in a state of equality,
“wherein all the power and jurisdiction is reciprocal, no one having more than another; there
being nothing more evident, than that creatures of the same species and rank, promiscuously
born to all the same advantages of nature, and the use of the same faculties, should also be equal
one amongst another without subordination or subjection . . .” [47] Locke quickly added,
47

however, that though all persons are in a state of liberty, it is not a state of license for the “state
of nature has a law of nature to govern it, which obliges every one: and reason, which is that law,
teaches all mankind, who will but consult it, that being all equal and independent, no one ought
to harm another in his life health, liberty, or possessions. . .” [48] Locke also alludes to an
48

“omnipotent, and infinitely wise maker” whose “workmanship they (mankind) are, made to last
during his (the maker’s) . . .pleasure.” [49] In other words, through reason, with which human
49

beings arrive at the law of nature prescribing certain moral conduct, each person can realize that
he has a natural right and duty to ensure his own survival and well-being in the world and a
related duty to respect the same right in others, and preserve mankind. [50] Through reason,
50

human beings are capable of recognizing the need to treat others as free, independent and equal
as all individuals are equally concerned with ensuring their own lives, liberties and properties. 51

[51] In this state of nature, the execution of the law of nature is placed in the hands of every
individual who has a right to punish transgressors of the law of nature to an extent that will
hinder its violation. [52] It may be gathered from Locke’s political theory that the rights to life,
52

health, liberty and property are natural rights, hence each individual has a right to be free from
violent death, from arbitrary restrictions of his person and from theft of his property. [53] In
53

addition, every individual has a natural right to defend oneself from and punish those who violate
the law of nature.

45[45] Locke, J., Second Treatise of Government (ed. C.B. Macpherson, 1980).

46[46] Id., Ch. II, Sec. 4 (ed. C.B. Macpherson, 1980), p. 8.

47[47] Id.

48[48] Id., Ch. II, Sec. 6, p. 9.

49[49] Id.

50[50] Jones, T., supra, p. 126.

51[51] Id., pp. 126-127.

52[52] Locke, J., supra, Ch II, Sec. 7, p. 9.

53[53] Jones, T., supra, p. 127.

But although the state of nature is somewhat of an Eden before the fall, there are two harsh
“inconveniences” in it, as Locke puts them, which adversely affect the exercise of natural rights.
First, natural law being an unwritten code of moral conduct, it might sometimes be ignored if the
personal interests of certain individuals are involved. Second, without any written laws, and
without any established judges or magistrates, persons may be judges in their own cases and self-
love might make them partial to their side. On the other hand, ill nature, passion and revenge
might make them too harsh to the other side. Hence, “nothing but confusion and disorder will
follow.” [54] These circumstances make it necessary to establish and enter a civil society by
54

mutual agreement among the people in the state of nature, i.e., based on a social contract
founded on trust and consent. Locke writes:

“The only way whereby any one divests himself of his natural liberty, and puts on the bonds of
civil society, is by agreeing with other men to join and unite into a community for their
comfortable, safe, and peaceable living one amongst another, in a secure enjoyment of their
properties (used in the broad sense, referring to life, liberty and property) and a greater security
against any, that are not of it.” [55]
55

This collective agreement then culminated in the establishment of a civil government.

Three important consequences of Locke’s theory on the origin of civil government and its
significance to the natural rights of individual subjects should be noted. First, since it was the
precariousness of the individual’s enjoyment of his natural and equal right to life, liberty, and
property that justified the establishment of civil government, then the “central, overriding
purpose of civil government was to protect and preserve the individual’s natural rights. For just
as the formation by individuals of civil or political society had arisen from their desire to ‘unite
for the mutual Preservation of their Lives, Liberties and Estates, which I (Locke) call by the
general name, Property,’ [56] so, too, did the same motive underlie - in the second stage of the
56

social contract - their collective decision to institute civil government.” [57] Locke thus
57

maintains, again using the term “property” in the broad sense, that, “(t)he great and chief end,
therefore, of men’s uniting into common-wealths, and putting themselves under government, is
the preservation of their property.” [58] Secondly, the central purpose that has brought a civil
58

government into existence, i.e., the protection of the individual’s natural rights, sets firm limits
on the political authority of the civil government. A government that violates the natural rights
of its subjects has betrayed their trust, vested in it when it was first established, thereby
undermining its own authority and losing its claim to the subjects’ obedience. Third and finally,
individual subjects have a right of last resort to collectively resist or rebel against and overthrow
a government that has failed to discharge its duty of protecting the people’s natural rights and has

54[54] Locke, J., supra, Ch II, Sec. 13, p. 9; Jones, T., supra, p. 128.

55[55] Id., Ch VIII, Sec. 95, p. 52.

56[56] Jones, T., supra, p. 128, citing J. Locke, Second Treatise, Ch. 9, sect. 123, p. 350.

57[57] Id., p. 128.

58[58] Locke, J., supra, Ch IX, Sec. 124, p. 66.

instead abused its powers by acting in an arbitrary or tyrannical manner. The overthrow of
government, however, does not lead to dissolution of civil society which came into being before
the establishment of civil government. [59] 59

Locke’s ideas, along with other modern natural law and natural rights theories, have had a
profound impact on American political and legal thought. American law professor Philip
Hamburger observes that American natural law scholars generally agree “that natural law
consisted of reasoning about humans in the state of nature (or absence of government)” and tend
“to emphasize that they were reasoning from the equal freedom of humans and the need of
humans to preserve themselves.” [60] As individuals are equally free, they did not have the right
60

to infringe the equal rights of others; even self-preservation typically required individuals to
cooperate so as to avoid doing unto others what they would not have others do unto them. [61] 61

With Locke’s theory of natural law as foundation, these American scholars agree on the well-
known analysis of how individuals preserved their liberty by forming government, i.e., that in
order to address the insecurity and precariousness of one’s life, liberty and property in the state
of nature, individuals, in accordance with the principle of self-preservation, gave up a portion of
their natural liberty to civil government to enable it “to preserve the residue.” [62] “People must
62

cede to [government] some of their natural rights, in order to vest it with powers.” [63] That
63

individuals “give up a part of their natural rights to secure the rest” in the modern natural law
sense is said to be “an old hackneyed and well known principle” [64] thus:
64

“That Man, on entering into civil society, of necessity, sacrifices a part of his natural liberty, has
been pretty universally taken for granted by writers on government. They seem, in general, not
to have admitted a doubt of the truth of the proposition. One feels as though it was treading on
forbidden ground, to attempt a refutation of what has been advanced by a Locke, a Bacari[a], and
some other writers and statesmen.” [65]65

But, while Locke’s theory showed the necessity of civil society and government, it was careful to
assert and protect the individual’s rights against government invasion, thus implying a theory of
limited government that both restricted the role of the state to protect the individual’s

59[59] Jones, T., supra, pp. 128-129.

60[60] Hamburger, P., “Natural Rights, Natural Law, and American Constitutions,” The Yale Law
Journal, vol. 102, no. 4, January 1993, p. 926.

61[61] Id., p. 924.

62[62] Id., pp. 930-931; see also Calder v. Bull, I L. Ed. 648 (1798).

63[63] Id., footnote 70, citing J. Jay, The Federalist No. 2 (1961), p. 37.

64[64] Id., footnote 70, citing Letter from William Pierce to St. George Tucker, GA. ST. GAZ.,
Sept. 28, 1787, reprinted in 16 Documentary History of the Constitution (1983), p. 443.

65[65] Id., footnote 70, citing N. Chipman, Sketches of the Principles of Government (1793), p.
70.
fundamental natural rights to life, liberty and property and prohibited the state, on moral
grounds, from violating those rights. [66] The natural rights theory, which is the characteristic
66

American interpretation of natural law, serves as the foundation of the well-entrenched concept
of limited government in the United States. It provides the theoretical basis of the formulation of
limits on political authority vis-à-vis the superior right of the individual which the government
should preserve. [67]
67

Locke’s ideas undoubtedly influenced Thomas Jefferson, the eminent statesman and
“philosopher of the (American) revolution and of the first constitutional order which free men
were permitted to establish.” [68] Jefferson espoused Locke’s theory that man is free in the state
68

of nature. But while Locke limited the authority of the state with the doctrine of natural rights,
Jefferson’s originality was in his use of this doctrine as basis for a fundamental law or
constitution established by the people. [69] To obviate the danger that the government would
69

limit natural liberty more than necessary to afford protection to the governed, thereby becoming
a threat to the very natural liberty it was designed to protect, people had to stipulate in their
constitution which natural rights they sacrificed and which not, as it was important for them to
retain those portions of their natural liberty that were inalienable, that facilitated the preservation
of freedom, or that simply did not need to be sacrificed. [70] Two ideas are therefore fundamental
70

in the constitution: one is the regulation of the form of government and the other, the securing of
the liberties of the people. [71] Thus, the American Constitution may be understood as
71

comprising three elements. First, it creates the structure and authority of a republican form of
government; second, it provides a division of powers among the different parts of the national
government and the checks and balances of these powers; and third, it inhibits government’s
power vis-à-vis the rights of individuals, rights existent and potential, patent and latent. These
three parts have one prime objective: to uphold the liberty of the people. [72]
72

But while the constitution guarantees and protects the fundamental rights of the people, it should
be stressed that it does not create them. As held by many of the American Revolution patriots,
“liberties do not result from charters; charters rather are in the nature of declarations of pre-

66[66] Jones, T., supra, p. 114.

67[67] Haines, C., The Revival of Natural Law Concepts (1965), p. 58.

68[68] Patterson, C., supra, pp. 27 and 49; see also Scott-Craig, T., “John Locke and Natural
Right”, p. 42 in Southern Methodist University Studies in Jurisprudence II: Natural Law and
Natural Rights (A. Harding, ed., 1965).

69[69] Id., pp. 7-8.

70[70] Hamburger, P., supra, pp. 931-932.

71[71] Black, H., Black’s Constitutional Law (2nd edition), p. 2.

72[72] Kurland, P. “The True Wisdom of the Bill of Rights”, The University of Chicago Law
Review, vol. 59, no. 1 (Winter 1992), pp. 7-8.
existing rights.” [73] John Adams, one of the patriots, claimed that natural rights are founded “in
73

the frame of human nature, rooted in the constitution of the intellect and moral world.” [74] Thus,
74

it is said of natural rights vis-à-vis the constitution:

“. . . (t)hey exist before constitutions and independently of them. Constitutions enumerate

such rights and provide against their deprivation or infringement, but do not create them.
It is supposed that all power, all rights, and all authority are vested in the people before they form
or adopt a constitution. By such an instrument, they create a government, and define and limit
the powers which the constitution is to secure and the government respect. But they do not
thereby invest the citizens of the commonwealth with any natural rights that they did not before
possess.” [75] (emphasis supplied)
75

A constitution is described as follows:

“A Constitution is not the beginning of a community, nor the origin of private rights; it is not the
fountain of law, nor the incipient state of government; it is not the cause, but consequence, of
personal and political freedom; it grants no rights to the people, but is the creature of their power,
the instrument of their convenience. Designed for their protection in the enjoyment of the
rights and powers which they possessed before the Constitution was made, it is but the
framework of the political government, and necessarily based upon the preexisting condition of
laws, rights, habits and modes of thought. There is nothing primitive in it; it is all derived from a
known source. It presupposes an organized society, law, order, propriety, personal freedom, a
love of political liberty, and enough of cultivated intelligence to know how to guard against the
encroachments of tyranny.” [76] (emphasis supplied)
76

That Locke’s modern natural law and rights theory was influential to those who framed and
ratified the United States constitution and served as its theoretical foundation is undeniable. [77]
77

In a letter in which George Washington formally submitted the Constitution to Congress in

September 1787, he spoke of the difficulties of drafting the document in words borrowed from
the standard eighteenth-century natural rights analysis:

“Individuals entering into society, must give up a share of liberty to preserve the rest. The
magnitude of the sacrifice must depend as well on situation and circumstance, as on the object to

73[73] Haines, C., supra, p. 55.

74[74] Id., p. 55, citing B.F. Wright, Jr., “American Interpretations of Natural Law”, American
Political Science Review, xx (Aug. 1926), 524 ff.

75[75] Black, H., supra, p. 8.

76[76] Watson, D., The Constitution of the United States (1910), vol. 1, pp. 108-109, citing
Cooley’s Constitutional Limitations, pp. 68-69.

77[77] Hamburger, P., supra, p. 955, citing N. Chipman, Sketches of the Principles of
Government (1793), p. 16.
be obtained. It is at all times difficult to draw with precision the line between those rights which
must be surrendered, and those which may be reserved . . . .” [78] (emphasis supplied)
78

Natural law is thus to be understood not as a residual source of constitutional rights but instead,
as the reasoning that implied the necessity to sacrifice natural liberty to government in a written
constitution. Natural law and natural rights were concepts that explained and justified written
constitutions. [79]
79

With the establishment of civil government and a constitution, there arises a conceptual
distinction between natural rights and civil rights, difficult though to define their scope and
delineation. It has been proposed that natural rights are those rights that “appertain to man in
right of his existence.” [80] These were fundamental rights endowed by God upon human beings,
80

“all those rights of acting as an individual for his own comfort and happiness, which are not
injurious to the natural rights of others.” [81] On the other hand, civil rights are those that
81

“appertain to man in right of his being a member of society.” [82] These rights, however, are
82

derived from the natural rights of individuals since:

“Man did not enter into society to become worse off than he was before, nor to have fewer rights
than he had before, but to have those rights better secured. His natural rights are the foundation
of all his rights.” [83]
83

Civil rights, in this sense, were those natural rights – particularly rights to security and protection
– which by themselves, individuals could not safeguard, rather requiring the collective support of
civil society and government. Thus, it is said:

“Every civil right has for its foundation, some natural right pre-existing in the individual, but to
the enjoyment of which his individual power is not, in all cases, sufficiently competent.” [84]
84

The distinction between natural and civil rights is “between that class of natural rights which
man retains after entering into society, and those which he throws into the common stock as a
member of society.” [85] The natural rights retained by the individuals after entering civil society
85

78[78] Id., p. 955, footnote 132, citing Letter from George Washington to the President of
Congress, in 1 Documentary History of the Constitution (1983), p. 305.

79[79] Id., p. 956.

80[80] Jones, T., supra, p. 142, citing T. Paine, The Rights of Man (1969), p. 90.

81[81] Id.

82[82] Id.

83[83] Id.

84[84] Id., p. 143, citing T. Paine, The Rights of Man (1969), p. 90.
were “all the intellectual rights, or rights of the mind,” [86] i.e., the rights to freedom of thought,
86

to freedom of religious belief and to freedom of expression in its various forms. The individual
could exercise these rights without government assistance, but government has the role of
protecting these natural rights from interference by others and of desisting from itself infringing
such rights. Government should also enable individuals to exercise more effectively the natural
rights they had exchanged for civil rights –like the rights to security and protection - when they
entered into civil society. [87]
87

American natural law scholars in the 1780s and early 1790s occasionally specified which rights
were natural and which were not. On the Lockean assumption that the state of nature was a
condition in which all humans were equally free from subjugation to one another and had no
common superior, American scholars tended to agree that natural liberty was the freedom of
individuals in the state of nature. [88] Natural rights were understood to be simply a portion of
88

this undifferentiated natural liberty and were often broadly categorized as the rights to life,
liberty, and property; or life, liberty and the pursuit of happiness. More specifically, they
identified as natural rights the free exercise of religion, freedom of conscience, [89] freedom of
89

speech and press, right to self-defense, right to bear arms, right to assemble and right to one’s
reputation. [90] In contrast, certain other rights, such as habeas corpus and jury rights, do not
90

exist in the state of nature, but exist only under the laws of civil government or the constitution
because they are essential for restraining government. [91] They are called civil rights not only in
91

the sense that they are protected by constitutions or other laws, but also in the sense that they are
acquired rights which can only exist under civil government. [92]92

In his Constitutional Law, Black states that natural rights may be used to describe those rights
which belong to man by virtue of his nature and depend upon his personality. “His existence as
an individual human being, clothed with certain attributes, invested with certain capacities,
adapted to certain kind of life, and possessing a certain moral and physical nature, entitles him,

85[85] Id.

86[86] Id.

87[87]Id.

88[88] Hamburger, P., supra, p. 918, citing J. Locke., Two Treatises of Government (1967), p.
322.

89[89] Id., p. 919, citing J. Madison, A Memorial and Remonstrance (ca June 20, 1785), in 8 The
Papers of James Madison 298, 299.

90[90] Id., pp. 919-920, citing J. Witherspoon, An Annotated Edition of Lectures on Moral
Philosophy (Lecture X) (Jack Scott ed.1982), pp. 122-128.

91[91] Id., pp. 920-921, citing J. Madison, Speech in House of Representatives (June 8, 1789), in
Creating the Bill of Rights (1991), p. 81.

92[92] Id., pp. 921-922.

without the aid of law, to such rights as are necessary to enable him to continue his existence,
develop his faculties, pursue and achieve his destiny.” [93] An example of a natural right is the
93

right to life. In an organized society, natural rights must be protected by law, “and although they
owe to the law neither their existence nor their sacredness, yet they are effective only when
recognized and sanctioned by law.” [94] Civil rights include natural rights as they are taken into
94

the sphere of law. However, there are civil rights which are not natural rights such as the right of
trial by jury. This right is not founded in the nature of man, nor does it depend on personality,
but it falls under the definition of civil rights which are the rights secured by the constitution to
all its citizens or inhabitants not connected with the organization or administration of government
which belong to the domain of political rights. “Natural rights are the same all the world over,
though they may not be given the fullest recognition under all governments. Civil rights which
are not natural rights will vary in different states or countries.” [95]
95

From the foregoing definitions and distinctions, we can gather that the inclusions in and
exclusions from the scope of natural rights and civil rights are not well-defined. This is
understandable because these definitions are derived from the nature of man which, in its
profundity, depth, and fluidity, cannot simply and completely be grasped and categorized. Thus,
phrases such as “rights appertain(ing) to man in right of his existence”, or “rights which are a
portion of man’s undifferentiated natural liberty, broadly categorized as the rights to life, liberty,
and property; or life, liberty and the pursuit of happiness”, or “rights that belong to man by virtue
of his nature and depend upon his personality” serve as guideposts in identifying a natural right.
Nevertheless, although the definitions of natural right and civil right are not uniform and exact,
we can derive from the foregoing definitions that natural rights exist prior to constitutions, and
may be contained in and guaranteed by them. Once these natural rights enter the constitutional
or statutory sphere, they likewise acquire the character of civil rights in the broad sense (as
opposed to civil rights distinguished from political rights), without being stripped of their nature
as natural rights. There are, however, civil rights which are not natural rights but are merely
created and protected by the constitution or other law such as the right to a jury trial.

Long after Locke conceived of his ideas of natural rights, civil society, and civil government, his
concept of natural rights continued to flourish in the modern and contemporary period. About a
hundred years after the Treatise of Government, Locke’s natural law and rights theory was
restated by the eighteenth-century political thinker and activist, Thomas Paine. He wrote his
classic text, The Rights of Man, Part 1 where he argued that the central purpose of all
governments was to protect the natural and imprescriptible rights of man. Citing the 1789
French Declaration of the Rights of Man and of Citizens, Paine identified these rights as the right
to liberty, property, security and resistance of oppression. All other civil and political rights -
such as to limits on government, to freedom to choose a government, to freedom of speech, and
to fair taxation - were derived from those fundamental natural rights. [96]
96

93[93] Black, H., supra, pp. 443-444.

94[94] Id., p. 444.

95[95] Id., p. 445.

96[96] Jones, T., supra, p. 114.

Paine inspired and actively assisted the American Revolution and defended the French
Revolution. His views were echoed by the authors of the American and the French declarations
that accompanied these democratic revolutions. [97] The American Declaration of Independence
97

of July 4, 1776, the revolutionary manifesto of the thirteen newly-independent states of America
that were formerly colonies of Britain, reads:

“We hold these Truths to be self-evident, that all Men are created equal, that they are endowed by
their Creator with certain inalienable Rights, that among these are Life, Liberty, and the Pursuit
of Happiness. That to secure these Rights, Governments are instituted among Men, deriving
their just Powers from the Consent of the Governed, that whenever any Form of Government
becomes destructive of these Ends, it is the Right of the People to alter or to abolish it, and to
institute new Government, laying its Foundation on such Principles, and organizing its Powers in
such Form as to them shall seem most likely to effect their Safety and Happiness.” [98]
98

(emphasis supplied)

His phrase “rights of man” was used in the 1789 French Declaration of the Rights of Man and of
Citizens, proclaimed by the French Constituent Assembly in August 1789, viz:

“The representatives of the French people, constituted in a National Assembly, considering that
ignorance, oblivion or contempt of the Rights of Man are the only causes of public misfortunes
and of the corruption of governments, have resolved to lay down in a solemn Declaration, the
natural, inalienable and sacred Rights of Man, in order that this Declaration, being always
before all the members of the Social Body, should constantly remind them of their Rights and
their Duties. . .” [99] (emphasis supplied)
99

Thereafter, the phrase “rights of man” gradually replaced “natural rights” in the latter period of
the eighteenth century, thus removing the theological assumptions of medieval natural law
theories. After the American and French Revolutions, the doctrine of the rights of man became
embodied not only in succinct declarations of rights, but also in new constitutions which
emphasized the need to uphold the natural rights of the individual citizen against other
individuals and particularly against the state itself. [100]
100

Considerable criticism was, however, hurled against natural law and natural rights theories,
especially by the logical positivist thinkers, as these theories were not empirically verifiable.
Nevertheless, the concept of natural rights or rights of man regained force and influence in the
1940s because of the growing awareness of the wide scale violation of such rights perpetrated by
the Nazi dictatorship in Germany. The British leader Winston Churchill and the American leader
Franklin Roosevelt stated in the preface of their Atlantic Charter in 1942 that “complete victory

97[97] Id.

98[98] Estrada v. Desierto, et al., 353 SCRA 452 (2001), Concurring Opinion of Justice Mendoza,
p. 549.

99[99] d’Entreves, A., supra, p. 51.

100[100] Jones, T., supra, pp. 114-115.

over their enemies is essential to decent life, liberty, independence and religious freedom, and to
preserve human rights and justice, in their own land as well as in other lands.” (emphasis
supplied) This time, natural right was recast in the idea of “human rights” which belong to every
human being by virtue of his or her humanity. The idea superseded the traditional concept of
rights based on notions of God-given natural law and of social contract. Instead, the refurbished
idea of “human rights” was based on the assumption that each individual person was entitled to
an equal degree of respect as a human being. [101]
101

With this historical backdrop, the United Nations Organization published in 1948 its Universal
Declaration of Human Rights (UDHR) as a systematic attempt to secure universal recognition of
a whole gamut of human rights. The Declaration affirmed the importance of civil and political
rights such as the rights to life, liberty, property; equality before the law; privacy; a fair trial;
freedom of speech and assembly, of movement, of religion, of participation in government
directly or indirectly; the right to political asylum, and the absolute right not to be tortured.
Aside from these, but more controversially, it affirmed the importance of social and economic
rights. [102] The UDHR is not a treaty and its provisions are not binding law, but it is a
102

compromise of conflicting ideological, philosophical, political, economic, social and juridical

ideas which resulted from the collective effort of 58 states on matters generally considered
desirable and imperative. It may be viewed as a “blending (of) the deepest convictions and
ideals of different civilizations into one universal expression of faith in the rights of man.” [103]
103

On December 16, 1966, the United Nations General Assembly adopted the International
Covenant on Economic, Social and Cultural Rights (ICESCR) and the International Covenant on
Civil and Political Rights (ICCPR) and the Optional Protocol to the Civil and Political Rights
providing for the mechanism of checking state compliance to the international human rights
instruments such as through a reportorial requirement among governments. These treaties
entered into force on March 23, 1976 [104] and are binding as international law upon
104

governments subscribing to them. Although admittedly, there will be differences in interpreting

particular statements of rights and freedoms in these United Nations instruments “in the light of
varied cultures and historical traditions, the basis of the covenants is a common agreement on the
fundamental objective of the dignity and worth of the human person. Such agreement is implied
in adherence to the (United Nations) Charter and corresponds to the universal urge for freedom
and dignity which strives for expression, despite varying degrees of culture and civilization and
despite the countervailing forces of repression and authoritarianism.” [105]
105

Human rights and fundamental freedoms were affirmed by the United Nations Organization in
the different instruments embodying these rights not just as a solemn protest against the Nazi-

101[101] Id., p. 119.

102[102] Id.

103[103] Drost, P., Human Rights as Legal Rights (1951), pp. 32-33.

104[104] Echegaray v. Secretary of Justice, et al., 297 SCRA 754 (1998).

105[105] Moskowitz, M., Human Rights and World Order (1958), pp. 80-83.
fascist method of government, but also as a recognition that the “security of individual rights,
like the security of national rights, was a necessary requisite to a peaceful and stable world
order.” [106] Moskowitz wrote:
106

“The legitimate concern of the world community with human rights and fundamental freedoms
stems in large part from the close relation they bear to the peace and stability of the world.
World War II and its antecedents, as well as contemporary events, clearly demonstrate the peril
inherent in the doctrine which accepts the state as the sole arbiter in questions pertaining to the
rights and freedoms of the citizen. The absolute power exercised by a government over its
citizens is not only a source of disorder in the international community; it can no longer be
accepted as the only guaranty of orderly social existence at home. But orderly social existence is
ultimately a matter which rests in the hands of the citizen. Unless the citizen can assert his
human rights and fundamental freedoms against his own government under the protection of the
international community, he remains at the mercy of the superior power.” [107]
107

Similar to natural rights and civil rights, human rights as the refurbished idea of natural right in
the 1940s, eludes definition. The usual definition that it is the right which inheres in persons
from the fact of their humanity seemingly begs the question. Without doubt, there are certain
rights and freedoms so fundamental as to be inherent and natural such as the integrity of the
person and equality of persons before the law which should be guaranteed by all constitutions of
all civilized countries and effectively protected by their laws. [108] It is nearly universally agreed
108

that some of those rights are religious toleration, a general right to dissent, and freedom from
arbitrary punishment. [109] It is not necessarily the case, however, that what the law guarantees
109

as a human right in one country should also be guaranteed by law in all other countries. Some
human rights might be considered fundamental in some countries, but not in others. For
example, trial by jury which we have earlier cited as an example of a civil right which is not a
natural right, is a basic human right in the United States protected by its constitution, but not so
in Philippine jurisdiction. [110] Similar to natural rights, the definition of human rights is derived
110

from human nature, thus understandably not exact. The definition that it is a “right which
inheres in persons from the fact of their humanity”, however, can serve as a guideline to identify
human rights. It seems though that the concept of human rights is broadest as it encompasses a
human person’s natural rights (e.g., religious freedom) and civil rights created by law (e.g. right
to trial by jury).

106[106] Id., p. 157.

107[107] Id., p. 164.

108[108] Gutierrez, Jr., H., “Human Rights - An Overview” in The New Constitution and Human
Rights (Fifth Lecture Series on the Constitution of the Philippines) (1979), p. 3.

109[109] Strauss, D. “The Role of a Bill of Rights”, The University of Chicago Law Review, vol.
59, no. 1 (Winter 1992), p. 554.

110[110] Gutierrez, Jr., H., supra, p. 3, citing Dorr v. United States, 195 US 138 (1904).
In sum, natural law and natural rights are not relic theories for academic discussion, but have had
considerable application and influence. Natural law and natural rights theories have played an
important role in the Declaration of Independence, the Abolition (anti-slavery) movement, and
parts of the modern Civil Rights movement. [111] In charging Nazi and Japanese leaders with
111

“crimes against humanity” at the end of the Second World War, Allied tribunals in 1945 invoked
the traditional concept of natural law to override the defense that those charged had only been
obeying the laws of the regimes they served. [112] Likewise, natural law, albeit called by another
112

name such as “substantive due process” which is grounded on reason and fairness, has served as
legal standard for international law, centuries of development in the English common law, and
certain aspects of American constitutional law. [113] In controversies involving the Bill of
113

Rights, the natural law standards of “reasonableness” and “fairness” or “justified on balance” are
used. Questions such as these are common: “Does this form of government involvement with
religion endanger religious liberty in a way that seems unfair to some group? Does permitting
this restriction on speech open the door to government abuse of political opponents? Does this
police investigative practice interfere with citizens’ legitimate interests in privacy and
security?” [114] Undeniably, natural law and natural rights theories have carved their niche in the
114

legal and political arena.

III. Natural Law and Natural Rights

in Philippine Cases and the Constitution

A. Traces of Natural Law and

Natural Rights Theory in Supreme Court Cases

Although the natural law and natural rights foundation is not articulated, some Philippine cases
have made reference to natural law and rights without raising controversy. For example, in
People v. Asas, [115] the Court admonished courts to consider cautiously an admission or
115

confession of guilt especially when it is alleged to have been obtained by intimidation and force.
The Court said: “(w)ithal, aversion of man against forced self-affliction is a matter of Natural
Law.” [116] In People v. Agbot, [117] we did not uphold lack of instruction as an excuse for
116 117

killing because we recognized the “offense of taking one’s life being forbidden by natural law
and therefore within instinctive knowledge and feeling of every human being not deprived of

111[111] Bix, B., supra, p. 228.

112[112] Jones, T., supra, p. 119.

113[113] Bix, B., supra, p. 228.

114[114] Strauss, D., supra, p. 555.

115[115] 70 Phil. 578 (1940).

116[116] Id., p. 582.

117[117] 106 SCRA 325 (1981).

reason.” [118] In Mobil Oil Philippines, Inc. v. Diocares, et al., [119] Chief Justice Fernando
118 119

acknowledged the influence of natural law in stressing that the element of a promise is the basis
of contracts. In Manila Memorial Park Cemetery, Inc. v. Court of Appeals, et al., [120] the120

Court invoked the doctrine of estoppel which we have repeatedly pronounced is predicated on,
and has its origin in equity, which broadly defined, is justice according to natural law. In Yu
Con v. Ipil, et al., [121] we recognized the application of natural law in maritime commerce.
121

The Court has also identified in several cases certain natural rights such as the right to liberty,122

[122] the right of expatriation, [123] the right of parents over their children which provides basis for
123

a parent’s visitorial rights over his illegitimate children, [124] and the right to the fruits of one’s
124

industry. [125]
125

In Simon, Jr. et al. v. Commission on Human Rights, [126] the Court defined human rights,
126

civil rights, and political rights. In doing so, we considered the United Nations instruments to
which the Philippines is a signatory, namely the UDHR which we have ruled in several cases as
binding upon the Philippines, [127] the ICCPR and the ICESCR. Still, we observed that “human
127

rights” is so generic a term that at best, its definition is inconclusive. But the term “human
rights” is closely identified to the “universally accepted traits and attributes of an individual,
along with what is generally considered to be his inherent and inalienable rights, encompassing

118[118] People v. Agbot, supra, p. 333.

119[119] 140 Phil 171 (1969).

120[120] 344 SCRA 769 (2000).

121[121] 41 Phil. 770 (1916).

122[122] People v. de los Santos, 200 SCRA 431 (1991).

123[123] Roa v. Insular Collector of Customs, 23 Phil. 315 (1917).

124[124] Silva v. Court of Appeals, et al., 275 SCRA 604 (1997).

125[125] Offshore Industries, Inc. v. NLRC, et al., 177 SCRA 50 (1989), citing Philippine Movie
Pictures Workers’ Association v. Premiere Productions, Inc., 92 Phil. 843 (1953).

126[126] 229 SCRA 117 (1994).

127[127] Fernando, E., Perspective on Human Rights: The Philippines in a Period of Crisis and
Transition (1979), pp. 1-2, citing Borovsky v. Commissioner of Immigration, et al., 90 Phil. 107
(1951); Mejoff v. Director of Prisons, 90 Phil. 70 (1951); Chirskoff v. Commissioner of
Immigration, et al., 90 Phil. 256 (1951); Andreu v. Commissioner of Immigration, et al., 90 Phil.
347 (1951).
almost all aspects of life,” [128] i.e., the individual’s social, economic, cultural, political and civil
128

relations. [129] On the other hand, we defined civil rights as referring to:
129

“. . . those (rights) that belong to every citizen of the state or country, or, in a wider sense, to all
inhabitants, and are not connected with the organization or administration of government. They
include the rights to property, marriage, equal protection of the laws, freedom of contract, etc.
Or, as otherwise defined, civil rights are rights appertaining to a person by virtue of his
citizenship in a state or community. Such term may also refer, in its general sense, to rights
capable of being enforced or redressed in a civil action.” [130]
130

Guarantees against involuntary servitude, religious persecution, unreasonable searches and

seizures, and imprisonment for debt are also identified as civil rights. [131] The Court’s
131

definition of civil rights was made in light of their distinction from political rights which refer to
the right to participate, directly or indirectly, in the establishment or administration of
government, the right of suffrage, the right to hold public office, the right of petition and, in
general, the rights appurtenant to citizenship vis-a-vis the management of government. [132] 132

To distill whether or not the Court’s reference to natural law and natural rights finds basis in a
natural law tradition that has influenced Philippine law and government, we turn to Philippine
constitutional law history.

B. History of the Philippine Constitution

and the Bill of Rights

During the Spanish colonization of the Philippines, Filipinos ardently fought for their
fundamental rights. The Propaganda Movement spearheaded by our national hero Jose Rizal,
Marcelo H. del Pilar, and Graciano Lopez-Jaena demanded assimilation of the Philippines by
Spain, and the extension to Filipinos of rights enjoyed by Spaniards under the Spanish
Constitution such as the inviolability of person and property, specifically freedom from arbitrary
action by officialdom particularly by the Guardia Civil and from arbitrary detention and
banishment of citizens. They clamored for their right to liberty of conscience, freedom of speech
and the press, freedom of association, freedom of worship, freedom to choose a profession, the

128[128] Simon, Jr., et al. v. Commission on Human Rights, supra, p. 127.

129[129] Id., pp. 126-127.

130[130] Id., pp. 132-133, citing Black’s Law Dictionary (6th edition, 1934), p. 1324; Handbook
on American Constitutional Law (4th ed., 1927), p. 524.

131[131] Id., pp. 132-133, citing Malcolm, The Constitutional Law of the Philippine Islands (2nd
ed., 1926), pp. 431-457.

132[132] Id., p. 133, citing Black’s Law Dictionary (6th edition, 1934), p. 1325; Handbook on
American Constitutional Law (4th ed., 1927), p. 524.
right to petition the government for redress of grievances, and the right to an opportunity for
education. They raised the roof for an end to the abuses of religious corporations. [133]
133

With the Propaganda Movement having apparently failed to bring about effective reforms,
Andres Bonifacio founded in 1892 the secret society of the Katipunan to serve as the military
arm of the secessionist movement whose principal aim was to create an independent Filipino
nation by armed revolution. [134] While preparing for separation from Spain, representatives of
134

the movement engaged in various constitutional projects that would reflect the longings and
aspirations of the Filipino people. On May 31, 1897, a republican government was established in
Biak-na-Bato, followed on November 1, 1897 by the unanimous adoption of the Provisional
Constitution of the Republic of the Philippines, popularly known as the Constitution of Biak-na-
Bato, by the revolution’s representatives. The document was an almost exact copy of the Cuban
Constitution of Jimaguayu, [135] except for four articles which its authors Felix Ferrer and
135

Isabelo Artacho added. These four articles formed the constitution’s Bill of Rights and protected,
among others, religious liberty, the right of association, freedom of the press, freedom from
imprisonment except by virtue of an order issued by a competent court, and freedom from
deprivation of property or domicile except by virtue of judgment passed by a competent court of
authority. [136]
136

The Biak-na-Bato Constitution was projected to have a life-span of two years, after which a final
constitution would be drafted. Two months after it was adopted, however, the Pact of Biak-na-
Bato was signed whereby the Filipino military leaders agreed to cease fighting against the
Spaniards and guaranteed peace for at least three years, in exchange for monetary indemnity for
the Filipino men in arms and for promised reforms. Likewise, General Emilio Aguinaldo, who
by then had become the military leader after Bonifacio’s death, agreed to leave the Philippines
with other Filipino leaders. They left for Hongkong in December 1897.

A few months later, the Spanish-American war broke out in April 1898. Upon encouragement of
American officials, Aguinaldo came back to the Philippines and set up a temporary dictatorial
government with himself as dictator. In June 1898, the dictatorship was terminated and
Aguinaldo became the President of the Revolutionary Government. [137] By this time, the
137

relations between the American troops and the Filipino forces had become precarious as it

133[133] Bernas, J., A Historical and Juridical Study of the Philippine Bill of Rights (1971), pp.
2-3, citing C. Majul, The Political and Constitutional Ideas of the Philippine Revolution (1957),
pp. 2-3.

134[134] Id., p. 2, citing Majul, supra, p. 3.

135[135] Id., pp. 6-7, citing T. Agoncillo, Malolos: The Crisis of the Republic (1960), p. 19 and
Majul, supra, p. 5, both authors citing de Veyra, The Constitution of Biak-na-Bato, 1 J. of the
Phil Historical Soc. I (1941).

136[136] Id., p. 7, citing T. Agoncillo, supra, pp. 19-20.

137[137] Id., p. 8, citing Kalaw, The Constitutional Plan of the Philippine Revolution, I Phil. L. J.,
204, 206 (1914).
became more evident that the Americans planned to stay. In September 1898, the Revolutionary
Congress was inaugurated whose primary goal was to formulate and promulgate a Constitution.
The fruit of their efforts was the Malolos Constitution which, as admitted by Felipe Calderon
who drafted it, was based on the constitutions of South American Republics [138] while the Bill
138

of Rights was substantially a copy of the Spanish Constitution. [139] The Bill of Rights included
139

among others, freedom of religion, freedom from arbitrary arrests and imprisonment, security of
the domicile and of papers and effects against arbitrary searches and seizures, inviolability of
correspondence, due process in criminal prosecutions, freedom of expression, freedom of
association, and right of peaceful petition for the redress of grievances. Its Article 28 stated that
“(t)he enumeration of the rights granted in this title does not imply the prohibition of any others
not expressly stated.” [140] This suggests that natural law was the source of these rights. [141] The
140 141

Malolos Constitution was short-lived. It went into effect in January 1899, about two months
before the ratification of the Treaty of Paris transferring sovereignty over the Islands to the
United States. Within a month after the constitution’s promulgation, war with the United States
began and the Republic survived for only about ten months. On March 23, 1901, American
forces captured Aguinaldo and a week later, he took his oath of allegiance to the United States. 142

[142]

In the early months of the war against the United States, American President McKinley sent the
First Philippine Commission headed by Jacob Gould Schurman to assess the Philippine situation.
On February 2, 1900, in its report to the President, the Commission stated that the Filipino
people wanted above all a “guarantee of those fundamental human rights which Americans
hold to be the natural and inalienable birthright of the individual but which under Spanish
domination in the Philippines had been shamefully invaded and ruthlessly trampled
upon.” [143] (emphasis supplied) In response to this, President McKinley, in his Instruction of
143

April 7, 1900 to the Second Philippine Commission, provided an authorization and guide for the
establishment of a civil government in the Philippines and stated that “(u)pon every division and
branch of the government of the Philippines . . . must be imposed these inviolable
rules . . .” These “inviolable rules” were almost literal reproductions of the First to Ninth
and the Thirteenth Amendment of the United States Constitution, with the addition of the
prohibition of bills of attainder and ex post facto laws in Article 1, Section 9 of said
Constitution. The “inviolable rules” or Bill of Rights provided, among others, that no
person shall be deprived of life, liberty, or property without due process of law; that no
person shall be twice put in jeopardy for the same offense or be compelled to be a witness
138[138] Id., p. 11, citing Kalaw, The Memoirs of Felipe Calderon (pts. 1-2), 4 Phil. Rev. 426, at
473 (1919).

139[139] Id., citing Malcolm, Constitutional Law of the Philippine Islands 117 (2nd ed. 1926).

140[140] Id., pp. 11-12, citing Planes Constitucionales Para Filipinas (T. Kalaw ed. 1934), p. 37.

141[141] Id., p. 12, citing Majul, supra, p. 179.

142[142] Id., p. 13.

143[143] Id., citing 1 Report of the (Schurman) Philippine Commission (1900), pp. 84-5.
against himself; that the right to be secure against unreasonable searches and seizures
shall not be violated; that no law shall be passed abridging the freedom of speech or of
the press or of the rights of the people to peaceably assemble and petition the
Government for redress of grievances. Scholars have characterized the Instruction as the
“Magna Charta of the Philippines” and as a “worthy rival of the Laws of the Indies.” [144] 144

The “inviolable rules” of the Instruction were re-enacted almost exactly in the Philippine Bill of
1902, [145] an act which temporarily provided for the administration of the affairs of the civil
145

government in the Philippine Islands, [146] and in the Philippine Autonomy Act of 1916, [147]
146 147

otherwise known as the Jones Law, which was an act to declare the purpose of the people of the
United States as to the future of the Philippine Islands and to provide an autonomous government
for it. [148] These three organic acts - the Instruction, the Philippine Bill of 1902, and the Jones
148

Law - extended the guarantees of the American Bill of Rights to the Philippines. In Kepner v.
United States, [149] Justice Day prescribed the methodology for applying these “inviolable
149

rules” to the Philippines, viz: “(t)hese principles were not taken from the Spanish law; they were
carefully collated from our own Constitution, and embody almost verbatim the safeguards of that
instrument for the protection of life and liberty.” [150] Thus, the “inviolable rules” should be
150

applied in the sense “which has been placed upon them in construing the instrument from
which they were taken.” [151] (emphasis supplied)
151

Thereafter, the Philippine Independence Law, popularly known as the Tydings-McDuffie Law of
1934, was enacted. It guaranteed independence to the Philippines and authorized the drafting of
a Philippine Constitution. The law provided that the government should be republican in form
and the Constitution to be drafted should contain a Bill of Rights. [152] Thus, the Constitutional
152

Convention of 1934 was convened. In drafting the Constitution, the Convention preferred to be
generally conservative on the belief that to be stable and permanent, the Constitution must be
anchored on the experience of the people, “providing for institutions which were the natural

144[144] Id., pp. 13-14, citing G. Malcolm, Constitutional Law of the Philippine Islands (2nd ed.
1926), p. 223.

145[145] Id., p. 15.

146[146] Gonzalez-Decano, A., The Exclusionary Rule and its Rationale (1997), p. 8.

147[147] Bernas, J., supra, p. 15.

148[148] Gonzalez-Decano, A., supra, p. 8.

149[149] 11 Phil. 669 (1904).

150[150] Id., p. 692.

151[151] Id.

152[152] Bernas, J., supra, p. 17.

outgrowths of the national life.” [153] As the people already had a political organization
153

buttressed by national traditions, the Constitution was to sanctify these institutions tested by time
and the Filipino people’s experience and to confirm the practical and substantial rights of the
people. Thus, the institutions and philosophy adopted in the Constitution drew substantially
from the organic acts which had governed the Filipinos for more than thirty years, more
particularly the Jones Law of 1916. In the absence of Philippine precedents, the Convention
considered precedents of American origin that might be suitable to our substantially American
political system and to the Filipino psychology and traditions. [154] Thus, in the words of Claro
154

M. Recto, President of the Constitutional Convention, the 1935 Constitution was “frankly an
imitation of the American charter.” [155]
155

Aside from the heavy American influence, the Constitution also bore traces of the Malolos
Constitution, the German Constitution, the Constitution of the Republic of Spain, the Mexican
Constitution, and the Constitutions of several South American countries, and the English
unwritten constitution. Though the Tydings-McDuffie law mandated a republican constitution
and the inclusion of a Bill of Rights, with or without such mandate, the Constitution would have
nevertheless been republican because the Filipinos were satisfied with their experience of a
republican government; a Bill of Rights would have nonetheless been also included because the
people had been accustomed to the role of a Bill of Rights in the past organic acts. [156]
156

The Bill of Rights in the 1935 Constitution was reproduced largely from the report of the
Convention’s committee on bill of rights. The report was mostly a copy of the Bill of Rights in
the Jones Law, which in turn was borrowed from the American constitution. Other provisions in
the report drew from the Malolos Constitution and the constitutions of the Republic of Spain,
Italy and Japan. There was a conscious effort to retain the phraseology of the well-known
provisions of the Jones Law because of the jurisprudence that had built around them. The
Convention insistently avoided including provisions in the Bill of Rights not tested in the
Filipino experience. [157] Thus, upon submission of its draft bill of rights to the President of the
157

Convention, the committee on bill of rights stated:

“Adoption and adaptation have been the relatively facile work of your committee in the
formulation of a bill or declaration of rights to be incorporated in the Constitution of the
Philippine Islands. No attempt has been made to incorporate new or radical changes. . .

The enumeration of individual rights in the present organic law (Acts of Congress of July 1,
1902, August 29, 1916) is considered ample, comprehensive and precise enough to safeguard the

153[153] Aruego, J., The Framing of the Philippine Constitution, vol. 1 (1935), p. 93.

154[154] Id., pp. 93-94.

155[155] Fernando, E., Political Law (1953), p. 42.

156[156] Aruego, supra, pp. 94-95.

157[157] Id., pp. 93-95, 149-151.

rights and immunities of Filipino citizens against abuses or encroachments of the Government,
its powers or agents. . .

Modifications or changes in phraseology have been avoided, wherever possible. This is because
the principles must remain couched in a language expressive of their historical
background, nature, extent and limitations, as construed and expounded by the great
statesmen and jurists that have vitalized them.” [158] (emphasis supplied)
158

The 1935 Constitution was approved by the Convention on February 8, 1935 and signed on
February 19, 1935. On March 23, 1935, United States President Roosevelt affixed his signature
on the Constitution. By an overwhelming majority, the Filipino voters ratified it on May 14,
1935. [159]
159

Then dawned the decade of the 60s. There grew a clamor to revise the 1935 charter for it to be
more responsive to the problems of the country, specifically in the socio-economic arena and to
the sources of threats to the security of the Republic identified by then President Marcos. In
1970, delegates to the Constitution Convention were elected, and they convened on June 1, 1971.
In their deliberations, “the spirit of moderation prevailed, and the . . . Constitution was hardly
notable for its novelty, much less a radical departure from our constitutional tradition.” [160] Our
160

rights in the 1935 Constitution were reaffirmed and the government to which we have been
accustomed was instituted, albeit taking on a parliamentary rather than presidential form. [161]
161

The Bill of Rights in the 1973 Constitution had minimal difference from its counterpart in the
1935 Constitution. Previously, there were 21 paragraphs in one section, now there were twenty-
three. The two rights added were the recognition of the people’s right to access to official
records and documents and the right to speedy disposition of cases. To the right against
unreasonable searches and seizures, a second paragraph was added that evidence obtained
therefrom shall be inadmissible for any purpose in any proceeding. [162]
162

The 1973 Constitution went into effect on January 17, 1973 and remained the fundamental law
until President Corazon Aquino rose to power in defiance of the 1973 charter and upon the
“direct exercise of the power of the Filipino people” [163] in the EDSA Revolution of February
163

23-25, 1986. On February 25, 1986, she issued Proclamation No. 1 recognizing that
“sovereignty resides in the people and all government authority emanates from them” and that

158[158] Id., pp. 149-150.

159[159] Fernando, E., supra, p. 42.

160[160] Fernando, E., The Constitution of the Philippines (1974), pp. 3-7.

161[161] Id., pp. 6-7.

162[162] Fernando, Perspective on Human Rights: The Philippines in a Period of Crisis and
Transition (1979), pp. 24-26.

163[163] Proclamation No. 3 (1986).

she and Vice President Salvador Laurel were “taking power in the name and by the will of the
Filipino people.” [164] The old legal order, constitution and enactments alike, was overthrown by
164

the new administration. [165] A month thenceforth, President Aquino issued Proclamation No. 3,
165

“Declaring National Policy to Implement the Reforms Mandated by the People, Protecting their
Basic Rights, Adopting a Provisional Constitution, and Providing for an Orderly Transition to
Government under a New Constitution.” The Provisional Constitution, otherwise known as the
“Freedom Constitution” adopted certain provisions of the 1973 Constitution, including the Bill
of Rights which was adopted in toto, and provided for the adoption of a new constitution within
60 days from the date of Proclamation No. 3. [166] 166

Pursuant to the Freedom Constitution, the 1986 Constitutional Commission drafted the 1987
Constitution which was ratified and became effective on February 2, 1987. [167] As in the 1935
167

and 1973 Constitutions, it retained a republican system of government, but emphasized and
created more channels for the exercise of the sovereignty of the people through recall, initiative,
referendum and plebiscite. [168] Because of the wide-scale violation of human rights during the
168

dictatorship, the 1987 Constitution contains a Bill of Rights which more jealously safeguards the
people’s “fundamental liberties in the essence of a constitutional democracy”, in the words of
ConCom delegate Fr. Joaquin Bernas, S.J. [169] It declares in its state policies that “(t)he state
169

values the dignity of every human person and guarantees full respect for human rights.” [170] In
170

addition, it has a separate Article on Social Justice and Human Rights, under which, the
Commission on Human Rights was created. [171] 171

Considering the American model and origin of the Philippine constitution, it is not surprising that
Filipino jurists and legal scholars define and explain the nature of the Philippine constitution in
similar terms that American constitutional law scholars explain their constitution. Chief Justice
Fernando, citing Laski, wrote about the basic purpose of a civil society and government, viz:

“The basic purpose of a State, namely to assure the happiness and welfare of its citizens is kept
foremost in mind. To paraphrase Laski, it is not an end in itself but only a means to an end, the

164[164] Proclamation No. 1 (1986).

165[165] Letter of Associate Justice Reynato S. Puno, supra.

166[166] Martin, R., Law and Jurisprudence on the Freedom Constitution of the Philippines
(1986), pp. 1-5.

167[167] De Leon v. Esguerra, 153 SCRA 602 (1987).

168[168] Article X, Sec. 3 and Article XII, Sec. 4 of the 1987 Constitution.

169[169] Records of the Constitutional Commission, vol. I, p. 674.

170[170] Article II, Sec. 11 of the 1987 Constitution.

171[171] Article XIII of the 1987 Constitution; Simon, Jr. v. Commission on Human Rights,
supra.
individuals composing it in their separate and identifiable capacities having rights which
must be respected. It is their happiness then, and not its interest, that is the criterion by which
its behavior is to be judged; and it is their welfare, and not the force at its command, that sets
the limits to the authority it is entitled to exercise.” [172] (emphasis supplied)
172

Citing Hamilton, he also defines a constitution along the lines of the natural law theory as “a law
for the government, safeguarding (not creating) individual rights, set down in writing.” [173] 173

(emphasis supplied) This view is accepted by Tañada and Fernando who wrote that the
constitution “is a written instrument organizing the government, distributing its powers and
safeguarding the rights of the people.” [174] Chief Justice Fernando also quoted Schwartz that
174

“a constitution is seen as an organic instrument, under which governmental powers are both
conferred and circumscribed. Such stress upon both grant and limitation of authority is
fundamental in American theory. ‘The office and purpose of the constitution is to shape and
fix the limits of governmental activity.’” [175] Malcolm and Laurel define it according to
175

Justice Miller’s definition in his opus on the American Constitution [176] published in 1893 as
176

“the written instrument by which the fundamental powers of government are established,
limited and defined, and by which those powers are distributed among the several departments
for their safe and useful exercise for the benefit of the body politic.” [177] The constitution
177

exists to assure that in the government’s discharge of its functions, the “dignity that is the
birthright of every human being is duly safeguarded.” [178]
178

Clearly then, at the core of constitutionalism is a strong concern for individual rights [179] as in
179

the modern period natural law theories. Justice Laurel as delegate to the 1934 Constitutional
Convention declared in a major address before the Convention:

“There is no constitution, worthy of the name, without a bill or declaration of rights. (It is) the
palladium of the people’s liberties and immunities, so that their persons, homes, their peace, their

172[172] Fernando, E., The Bill of Rights (2nd ed. 1972), p. 3, citing Laski, The State in Theory
and Practice (1935), pp. 35-36.

173[173] Fernando, E. The Constitution of the Philippines (1974), p. 20, citing Hamilton,
Constitutionalism in IV Encyclopedia of the Social Sciences (1928), p. 255.

174[174] Id., p. 20.

175[175] Id., p. 21, citing 1 Schwartz, Commentary on the Constitution of the United States, The
Powers of Government (1963), pp. 1-2.

176[176] Id., p. 21, citing Lectures on the Constitution of the United States, p. 64.

177[177] Id., citing Malcolm and Laurel, Philippine Constitutional Law (1936), p. 6.

178[178] Id., p. 33.

179[179] Fernando, E., Government Powers and Human Rights (1973), p. 5.

livelihood, their happiness and their freedom may be safe and secure from an ambitious ruler, an
envious neighbor, or a grasping state.” [180]
180

As Chairman of the Committee on the Declaration of Rights, he stated:

“The history of the world is the history of man and his arduous struggle for liberty. . . . It is the
history of those brave and able souls who, in the ages that are past, have labored, fought and bled
that the government of the lash - that symbol of slavery and despotism - might endure no more.
It is the history of those great self-sacrificing men who lived and suffered in an age of cruelty,
pain and desolation, so that every man might stand, under the protection of great rights and
privileges, the equal of every other man.” [181] 181

Being substantially a copy of the American Bill of Rights, the history of our Bill of Rights dates
back to the roots of the American Bill of Rights. The latter is a charter of the individual’s
liberties and a limitation upon the power of the state [182] which traces its roots to the English
182

Magna Carta of 1215, a first in English history for a written instrument to be secured from a
sovereign ruler by the bulk of the politically articulate community that intended to lay down
binding rules of law that the ruler himself may not violate. “In Magna Carta is to be found the
germ of the root principle that there are fundamental individual rights that the State
-sovereign though it is - may not infringe.” [183] (emphasis supplied)
183

In Sales v. Sandiganbayan, et al., [184] quoting Allado v. Diokno,

184 185
[185] this Court ruled that the
Bill of Rights guarantees the preservation of our natural rights, viz:

“The purpose of the Bill of Rights is to protect the people against arbitrary and discriminatory
use of political power. This bundle of rights guarantees the preservation of our natural rights
which include personal liberty and security against invasion by the government or any of its
branches or instrumentalities.” [186] (emphasis supplied)
186

180[180] Fernando, E. The Constitution of the Philippines (1974), p. 34, citing III, S. Laurel,
Proceedings of the Philippine Constitutional Convention (1966), p. 335.

181[181] Id., p. 34, citing III, S. Laurel, Proceedings of the Philippine Constitutional Convention
(1966), p. 648.

182[182] Black, H., Black’s Constitutional Law (2nd ed.), p. 8.

183[183] Schwartz, B., The Great Rights of Mankind: A History of the American Bill of Rights
(1977), pp. 2-3.

184[184] G.R. No. 143802, November 15, 2001.

185[185] 232 SCRA 192 (1994).

186[186] Sales v. Sandiganbayan, et al., supra, p. 15, citing Allado v. Diokno, 232 SCRA 192
(1994), pp. 209-210.
We need, however, to fine tune this pronouncement of the Court, considering that certain rights
in our Bill of Rights, for example habeas corpus, have been identified not as a natural right, but a
civil right created by law. Likewise, the right against unreasonable searches and seizures has
been identified in Simon as a civil right, without expounding however what civil right meant
therein - whether a natural right existing before the constitution and protected by it, thus
acquiring the status of a civil right; or a right created merely by law and non-existent in the
absence of law. To understand the nature of the right against unreasonable search and seizure
and the corollary right to exclusion of evidence obtained therefrom, we turn a heedful eye on the
history, concept and purpose of these guarantees.

IV. History of the Guarantee against

Unreasonable Search and Seizure and the
Right to Exclusion of Illegally Seized Evidence
in the United States and in the Philippines

The origin of the guarantee against unreasonable search and seizure in the Philippine
constitutions can be traced back to hundreds of years ago in a land distant from the Philippines.
Needless to say, the right is well-entrenched in history.

The power to search in England was first used as an instrument to oppress objectionable
publications. [187] Not too long after the printing press was developed, seditious and libelous
187

publications became a concern of the Crown, and a broad search and seizure power developed to
suppress these publications. [188] General warrants were regularly issued that gave all kinds of
188

people the power to enter and seize at their discretion under the authority of the Crown to
enforce publication licensing statutes. [189] In 1634, the ultimate ignominy in the use of general
189

warrants came when the early “great illuminary of the common law,” [190] and most influential
190

of the Crown’s opponents, [191] Sir Edward Coke, while on his death bed, was subjected to a
191

ransacking search and the manuscripts of his Institutes were seized and carried away as seditious
and libelous publications. [192]
192

187[187] Hall, Jr., J., Search and Seizure (1982), p. 13, citing Marcus v. Search Warrants of
Property 367 US 717 (1961); Roaden v. Kentucky, 413 US 496 (1973); Lasson, The History and
Development of the Fourth Amendment to the Constitution of the United States (1937), pp. 23-
24.

188[188] Id., p. 13, citing Ladynski, Search and Seizure and the Supreme Court (1966), pp. 20-
22.

189[189] Id., p. 14, citing Marcus v. Search Warrants, supra, pp. 724-727; Lasson, supra, pp. 24-
29; Ladynski, supra, p. 23.

190[190] Id., citing Ladynski, p. 23.

191[191] Id., citing Lasson, pp. 31-32 and Ladynski, p. 23; footnote 19.

192[192] Id.
The power to issue general warrants and seize publications grew. They were also used to search
for and seize smuggled goods. [193] The developing common law tried to impose limits on the
193

broad power to search to no avail. In his History of the Pleas of Crown, Chief Justice Hale stated
unequivocally that general warrants were void and that warrants must be used on “probable
cause” and with particularity. [194] Member of Parliament, William Pitt, made his memorable
194

and oft-quoted speech against the unrestrained power to search:

“The poorest man may, in his cottage, bid defiance to all the forces of the Crown. It may be frail
- its roof may shake - the wind may blow through it - the storm may enter - the rain may enter;
but the King of England may not enter; all his force dares not cross the threshold of the ruined
tenement.” [195]
195

Nevertheless, legislation authorizing general warrants continued to be passed. 196

[196]

In the 16th century, writs of assistance, called as such because they commanded all officers of the
Crown to participate in their execution, [197] were also common. These writs authorized
197

searches and seizures for enforcement of import duty laws. [198] The “same powers and
198

authorities” and the “like assistance” that officials had in England were given to American
customs officers when parliament extended the customs laws to the colonies. The abuse in the
writs of assistance was not only that they were general, but they were not returnable and once
issued, lasted six months past the life of the sovereign. [199]
199

These writs caused profound resentment in the colonies. [200] They were predominantly used in
200

Massachusetts, the largest port in the colonies [201] and the seat of the American revolution.
201

When the writs expired six months after the death of George II in October 1760, [202] sixty-three
202

Boston merchants who were opposed to the writs retained James Otis, Jr. to petition the Superior

193[193] Id., p. 14, citing Ladynski, p. 24.

194[194] Id., citing Lasson, pp. 33-34, Ladynski, p. 27.

195[195] Id., p. 15, citing Ladynski, p. 25.

196[196] Id., citing Lasson, p. 37.

197[197] Id., p. 14, citing Ladynski, p. 22.

198[198] Id., citing Lasson, pp. 30-31; Ladynski, p. 23.

199[199] Id., p. 15, citing Lasson, p. 54 and Ladynski, p. 31.

200[200] Id., citing Ladynski, p. 31.

201[201] Id., p. 15, citing Lasson, p. 55 and Ladynski, p. 31.

202[202] Id., p. 16, citing Lasson, pp. 55-57 and Ladynski, p. 33, and Adams, J., 2 Legal Papers
of John Adams (1965), p. 112.
Court for a hearing on the question of whether new writs should be issued. [203] Otis used the
203

opportunity to denounce England’s whole policy to the colonies and on general warrants. [204] 204

He pronounced the writs of assistance as “the worst instrument of arbitrary power, the most
destructive of English liberty and the fundamental principles of law, that ever was found in an
English law book” since they placed “the liberty of every man in the hands of every petty
officer.” [205] Otis was a visionary and apparently made the first argument for judicial review
205

and nullifying of a statute exceeding the legislature’s power under the Constitution and “natural
law.” [206] This famous debate in February 1761 in Boston was “perhaps the most prominent
206

event which inaugurated the resistance of the colonies to the oppressions of the mother country.
‘Then and there,’ said John Adams, ‘then and there was the first scene of the first act of
opposition to the arbitrary claims of Great Britain. Then and there the child Independence was
born.’” [207] But the Superior Court nevertheless held that the writs could be issued. [208]
207 208

Once the customs officials had the writs, however, they had great difficulty enforcing the
customs laws owing to rampant smuggling and mob resistance from the citizenry. [209] The
209

revolution had begun. The Declaration of Independence followed. The use of general warrants
and writs of assistance in enforcing customs and tax laws was one of the causes of the American
Revolution. [210] 210

Back in England, shortly after the Boston debate, John Wilkes, a member of Parliament,
anonymously published the North Briton, a series of pamphlets criticizing the policies of the
British government. [211] In 1763, one pamphlet was very bold in denouncing the government.
211

Thus, the Secretary of the State issued a general warrant to “search for the authors, printers, and
publishers of [the] seditious and treasonable paper.” [212] Pursuant to the warrant, Wilkes’ house
212

was searched and his papers were indiscriminately seized. He sued the perpetrators and obtained

203[203] Id., citing Lasson, pp. 57-58 and Ladynski, p. 33.

204[204] Id., citing Lasson, p. 58 and Ladynski, p. 33.

205[205] Boyd v. United States, 116 US 616, 625 (1885).

206[206] Hall, Jr., J., supra, p. 16.

207[207] Boyd v. United States, supra.

208[208] Hall, Jr., J., supra, p. 16, citing Petition of Lechmere, Adams, pp. 108-147.

209[209] Id., p. 16, citing Lasson, pp. 67-73 and Ladynski, p. 35.

210[210] Id., p. 16.

211[211] Id., pp. 16-17, citing Lasson, p. 43.

212[212] Id., p. 17, citing Lasson, p. 43.

a judgment for damages. The warrant was pronounced illegal “as totally subversive of the
liberty” and “person and property of every man in this kingdom.” [213]
213

Seeing Wilkes’ success, John Entick filed an action for trespass for the search and seizure
of his papers under a warrant issued earlier than Wilkes’. This became the case of Entick
v. Carrington, [214] considered a landmark of the law of search and seizure and called a
214

familiar “monument of English freedom”. [215] Lord Camden, the judge, held that the
215

general warrant for Entick’s papers was invalid. Having described the power claimed by
the Secretary of the State for issuing general search warrants, and the manner in which
they were executed, Lord Camden spoke these immortalized words, viz:

“Such is the power and therefore one would naturally expect that the law to warrant it should be
clear in proportion as the power is exorbitant. If it is law, it will be found in our books; if it is
not to be found there, it is not law.

The great end for which men entered into society was to secure their property. That right is
preserved sacred and incommunicable in all instances where it has not been taken away or
abridged by some public law for the good of the whole. The cases where this right of property is
set aside by positive law are various. Distresses, executions, forfeitures, taxes, etc., are all of this
description, wherein every man by common consent gives up that right for the sake of justice and
the general good. By the laws of England, every invasion of private property, be it ever so
minute, is a trespass. No man can set his foot upon my ground without my license but he is
liable to an action though the damage be nothing; which is proved by every declaration in
trespass where the defendant is called upon to answer for bruising the grass and even treading
upon the soil. If he admits the fact, he is bound to show by way of justification that some
positive law has justified or excused him. . . If no such excuse can be found or produced, the
silence of the books is an authority against the defendant and the plaintiff must have
judgment. . .” [216] (emphasis supplied)
216

The experience of the colonies on the writs of assistance which spurred the Boston debate and
the Entick case which was a “monument of freedom” that every American statesman knew
during the revolutionary and formative period of America, could be confidently asserted to have
been “in the minds of those who framed the Fourth Amendment to the Constitution, and were
considered as sufficiently explanatory of what was meant by unreasonable searches and
seizures.” [217]
217

213[213]Id., citing Lasson, p. 44.

214[214] (1765) 19 Howell’s St Tr 1029.

215[215] Id., p. 18, citing Boyd v. United States, supra; p.19, citing numerous cases where the
Supreme Court cited Entick v. Carrington, supra.

216[216] Boyd v. United States, supra, p. 627.

217[217] Id., pp. 626-627.

The American experience with the writs of assistance and the Entick case were considered by
the United States Supreme Court in the first major case to discuss the scope of the Fourth
Amendment right against unreasonable search and seizure in the 1885 case of Boyd v. United
States, supra, where the court ruled, viz:

“The principles laid down in this opinion (Entick v. Carrington, supra) affect the very essence of
constitutional liberty and security. They reach farther than the concrete form of the case then
before the court, with its adventitious circumstances; they apply to all invasions, on the part of
the Government and its employees, of the sanctity of a man’s home and the privacies of life.
It is not the breaking of his doors and the rummaging of his drawers that constitutes the
essence of the offense; but it is the invasion of his indefeasible right of personal security,
personal liberty and private property, where that right has never been forfeited by his
conviction of some public offense; it is the invasion of this sacred right which underlies and
constitutes the essence of Lord Camden’s judgment.” [218] (emphasis supplied)
218

In another landmark case of 1914, Weeks v. United States, [219] the Court, citing Adams v. New
219

York, [220] reiterated that the Fourth Amendment was intended to secure the citizen in person
220

and property against the unlawful invasion of the sanctity of his home by officers of the law,
acting under legislative or judicial sanction.

With this genesis of the right against unreasonable searches and seizures and the jurisprudence
that had built around it, the Fourth Amendment guarantee was extended by the United States to
the Filipinos in succinct terms in President McKinley’s Instruction of April 7, 1900, viz:

“. . . that the right to be secure against unreasonable searches and seizures shall not be
violated.” [221]
221

218[218] Id., p. 630.

219[219] 232 US 383 (1914).

220[220] 192 US 585 (1903).

221[221] Bernas, J., supra, p. 296. Although even as early as the Malolos Constitution of 1899,
this right against unreasonable searches and seizures has been protected with the sanctity of the
domicile as the primordial consideration. The provision was an almost exact reproduction of the
Bill of Rights of the Spanish Constitution (Bernas, J., supra, p. 11, citing Malcolm,
Constitutional Law of the Philippine Islands [2nd ed. 1926], p. 117), viz:

“ARTICLE 10

No person shall enter the domicil of a Filipino or foreigner residing in the Philippine
Islands without his consent, except in urgent cases of fire, flood, earthquake or other similar
danger, or of unlawful aggression proceeding from within, or in order to assist a person within
calling for help.
This provision in the Instruction was re-enacted in Section 5 of the Philippine Bill of 1902, this
time with a provision on warrants, viz:

“That the right to be secure against unreasonable searches and seizures shall not be violated.

xxx xxx xxx

That no warrant shall issue except upon probable cause, supported by oath or affirmation, and
particularly describing the place to be searched and the person or things to be seized.” [222]
222

The above provisions were reproduced verbatim in the Jones Law of 1916.

Then came the 1935 Constitution which provides in Article IV, Section 1(3), viz:

“Section 1(3). The right of the people to be secure in their persons, houses, papers, and effects
against unreasonable searches and seizures shall not be violated, and no warrants shall issue but

Outside of these cases, the entrance into the domicil of a Filipino or foreigner residing in
the Philippine Islands and the searching of his papers or effects, can only be decreed by a
competent judge and executed in the daytime.

The searching of the papers and effects shall always be done in the presence of the
interested party or of a member of his family, and, in their absence, of two witnesses residing in
the same town (pueblo).

However, if an offender found in flagrante and pursued by the authorities or their agents
should take refuge in his domicil these may enter the same, but only for the purpose of his
apprehension.

If he should take refuge in the domicil of another, request should first be made of the
latter.”

xxx xxx xxx

ARTICLE 13

All decrees of imprisonment, for the search of domicil, or for the detention of correspondence,
whether written, telegraphic, or by telephone, shall be for cause.

If the decree should lack this requisite, or if the causes on which it may be founded are judicially
declared unlawful or manifestly insufficient, the person who may have been imprisoned, or
whose imprisonment may not have been confirmed within the term prescribed in Art. 9 or whose
domicil may have been forcibly entered into, or whose correspondence may have been detained,
shall have the right to demand the liabilities which ensue.” (Bernas, J., supra, pp. 292-293.)

222[222] Bernas, J., supra, pp. 297-298.

upon probable cause, to be determined by the judge after examination under oath or affirmation
of the complainant and the witnesses he may produce, and particularly describing the place to be
searched, and the persons or things to be seized.”

Initially, the Constitutional Convention’s committee on bill of rights proposed an exact copy of
the Fourth Amendment of the United States Constitution in their draft, viz:

“The right of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated, and no warrants shall issue but upon
probable cause, supported by oath or affirmation, and particularly describing the place to be
searched, and the persons or things to be seized.” [223]
223

During the debates of the Convention, however, Delegate Vicente Francisco proposed to amend
the provision by inserting the phrase “to be determined by the judge after examination under oath
or affirmation of the complainant and the witness he may produce” in lieu of “supported by oath
or affirmation.” His proposal was based on Section 98 of General Order No. 58 or the Code of
Criminal Procedure then in force in the Philippines which provided that: “(t)he judge or justice
of the peace must, before issuing the warrant, examine on oath or affirmation the complainant
and any witness he may produce and take their deposition in writing.” [224] The amendment was
224

accepted as it was a remedy against the evils pointed out in the debates, brought about by the
issuance of warrants, many of which were in blank, upon mere affidavits on facts which were
generally found afterwards to be false. [225]
225

When the Convention patterned the 1935 Constitution’s guarantee against unreasonable searches
and seizures after the Fourth Amendment, the Convention made specific reference to the Boyd
case and traced the history of the guarantee against unreasonable search and seizure back to the
issuance of general warrants and writs of assistance in England and the American colonies. [226]
226

From the Boyd case, it may be derived that our own Constitutional guarantee against
unreasonable searches and seizures, which is an almost exact copy of the Fourth Amendment,
seeks to protect rights to security of person and property as well as privacy in one’s home and
possessions.

Almost 40 years after the ratification of the 1935 Constitution, the provision on the right against
unreasonable searches and seizures was amended in Article IV, Section 3 of the 1973
Constitution, viz:

223[223] Aruego, J., supra, pp. 159-160.

224[224] Gonzalez-Decano, A., supra, p. 9, citing E. Navarro, A Treatise on the Law of Criminal
Procedure in the Philippines (1952), pp. 395-396.

225[225] Aruego, J., supra, p. 160.

226[226] Laurel, J., Proceedings of the Philippine Constitutional Commission (1966), vol. III, p.
172; see also Moncado v. People’s Court, 80 Phil. 1 (1948), Dissenting Opinion of Justice
Bengzon.
“Sec. 3. The right of the people to be secure in their persons, houses, papers, and effects against
unreasonable searches and seizures of whatever nature and for any purpose shall not be violated,
and no search warrant or warrant of arrest shall issue except upon probable cause to be
determined by the judge, or such other responsible officer as may be authorized by law, after
examination under oath or affirmation of the complainant and the witnesses he may produce, and
particularly describing the place to be searched, and the persons or things to be seized.”

Noticeably, there were three modifications of the 1935 counterpart, namely: (1) the clause was
made applicable to searches and seizures “of whatever nature and for any purpose”; (2) the
provision on warrants was expressly made applicable to both “search warrant or warrant of
arrest”; and (3) probable cause was made determinable not only by a judge, but also by “such
other officer as may be authorized by law.” [227] But the concept and purpose of the right
227

remained substantially the same.

As a corollary to the above provision on searches and seizures, the exclusionary rule made its
maiden appearance in Article IV, Section 4(2) of the Constitution, viz:

“Section 4 (1). The privacy of communication and correspondence shall be inviolable except
upon lawful order of the court, or when public safety and order require otherwise.

(2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for
any purpose in any proceeding.”

That evidence obtained in violation of the guarantee against unreasonable searches and seizures
is inadmissible was an adoption of the Court’s ruling in the 1967 case of Stonehill v. Diokno. 228

[228]

Sections 3 and 4 of the 1973 Constitution were adopted in toto in Article I, Section 1 of the
Freedom Constitution which took effect on March 25, 1986, viz:

“Section 1. The provision of . . . ARTICLE IV (Bill of Rights) . . . of the 1973 Constitution, as

amended, remain in force and effect and are hereby adopted in toto as part of this Provisional
Constitution.” [229]
229

227[227] Gonzalez-Decano, A., supra, p. 11.

228[228] 20 SCRA 383 (1967); Fernando, E., The Constitution of the Philippines (1974), pp. 658-
659.

229[229] It may be argued that the Freedom Constitution had retroactive effect insofar as it
provides that certain articles of the 1973 Constitution, including the Bill of Rights, “remain in
force and effect.” Consequently, as these articles were in force after the abrogation of the 1973
Constitution on February 25, 1986 and before the adoption of the Freedom Constitution on
March 25, 1986, private respondent Dimaano can invoke the constitutionally guaranteed right
against unreasonable search and seizure and the exclusionary right. Nevertheless, this separate
opinion addresses the question of whether or not she can invoke these rights even if the Freedom
Constitution had no retroactive effect.
Thereafter, pursuant to the Freedom Constitution, the 1987 Constitution was drafted and ratified
on February 2, 1987. Sections 2 and 3, Article III thereof provide:

“Section 2. The right of the people to be secure in their persons, houses, papers, and effects
against unreasonable searches and seizures of whatever nature and for any purpose shall be
inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to
be determined personally by a judge after examination under oath or affirmation of the
complainant and the witnesses he may produce, and particularly describing the place to be
searched and the persons or things to be seized.

xxx xxx x xx

Section 3 (1). The privacy of communication and correspondence shall be inviolable except
upon lawful order of the court, or when public safety and order requires otherwise as prescribed
by law.

(2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for
any purpose in any proceeding.”

The significant modification of Section 2 is that probable cause may be determined only by a
judge and no longer by “such other responsible officer as may be authorized by law.” This was a
reversion to the counterpart provision in the 1935 Constitution.

Parenthetically, in the international arena, the UDHR provides a similar protection in Article 12,
viz:

“No one shall be subjected to arbitrary interference with his privacy, family, home or
correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the
protection of the law against such interference or attacks.”

The ICCPR similarly protects this human right in Article 17, viz:

“1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home
or correspondence, nor to attacks upon his honour and reputation.

2. Everyone has the right to protection of the law against such interference or attacks.”

In the United States, jurisprudence on the Fourth Amendment continued to grow from the Boyd
case. The United States Supreme Court has held that the focal concern of the Fourth
Amendment is to protect the individual from arbitrary and oppressive official conduct. [230] It
230

also protects the privacies of life and the sanctity of the person from such interference. [231] In
231

later cases, there has been a shift in focus: it has been held that the principal purpose of the
guarantee is the protection of privacy rather than property, “[f]or the Fourth Amendment protects

230[230] Hall, Jr., J., supra, p. 9, citing Silverman v. United States, 365 US 505 (1961);
Schmerber V. California, 384 US 757 (1966); Camara v. Municipal Court of San Francisco, 387
US 523 (1967). Other citations omitted.
people, not places.” [232] The tests that have more recently been formulated in interpeting the
232

provision focus on privacy rather than intrusion of property such as the “constitutionally
protected area” test in the 1961 case of Silverman v. United States [233] and the “reasonable
233

expectation of privacy” standard in Katz v. United States [234] which held that the privacy of
234

communication in a public telephone booth comes under the protection of the Fourth
Amendment.

Despite the shift in focus of the Fourth Amendment in American jurisdiction, the essence of this
right in Philippine jurisdiction has consistently been understood as respect for one’s personality,
property, home, and privacy. Chief Justice Fernando explains, viz:

“It is deference to one’s personality that lies at the core of this right, but it could be also looked
upon as a recognition of a constitutionally protected area, primarily one’s home, but not
necessarily excluding an office or a hotel room. (Cf. Hoffa v. United States, 385 US 293 [1966])
What is sought to be regarded is a man’s prerogative to choose who is allowed entry in his
residence, for him to retreat from the cares and pressures, even at times the oppressiveness
of the outside world, where he can truly be himself with his family. In that haven of refuge,
his individuality can assert itself not only in the choice of who shall be welcome but likewise
in the objects he wants around him. There the state, however powerful, does not as such have
access except under the circumstances noted, for in the traditional formulation, his house,
however humble, is his castle. (Cf. Cooley: ‘Near in importance to exemption from any arbitrary
control of the person is that maxim of the common law which secures to the citizen immunity in
his home against the prying eyes of the government, and protection in person, property, and
papers against even the process of the law, except in specified cases. The maxim that ‘every
man’s house is his castle,’ is made part of our constitutional law in the clauses prohibiting
unreasonable searches and seizures, and has always been looked upon as of high value to the
citizen.’ (1 Constitutional Limitations, pp. 610-611 [1927]) In the language of Justice Laurel,
this provision is ‘intended to bulwark individual security, home, and legitimate possessions’
(Rodriquez v. Vollamiel, 65 Phil. 230, 239 (1937). Laurel con.) Thus is protected ‘his personal
privacy and dignity against unwarranted intrusion by the State.’ There is to be no invasion
‘on the part of the government and its employees of the sanctity of a man’s home and the
privacies of life.’ (Boyd v. United States, 116 US 616, 630 [1886])” [235] (emphasis supplied)
235

As early as 1904, the Court has affirmed the sanctity and privacy of the home in United States v.
Arceo, [236] viz:
236

231[231] Id., citing Warden, Maryland Penitentiary v. Hayden, 387 US 294 (1967); Berger v. New
York, 388 US 41 (1967); Stone v. Powell, 428 US 465 (1976). Other citations omitted.

232[232] Katz v. United States, 389 US 347 (1967). Other citations omitted.

233[233] 365 US 505 (1961).

234[234] 389 US 347 (1967).

235[235] Fernando, E., The Bill of Rights (1972), pp. 217-218.

“The inviolability of the home is one of the most fundamental of all the individual rights
declared and recognized in the political codes of civilized nations. No one can enter into the
home of another without the consent of its owners or occupants.

The privacy of the home - the place of abode, the place where man with his family may
dwell in peace and enjoy the companionship of his wife and children unmolested by
anyone, even the king, except in rare cases - has always been regarded by civilized nations
as one of the most sacred personal rights to whom men are entitled. Both the common and
the civil law guaranteed to man the right to absolute protection to the privacy of his home. The
king was powerful; he was clothed with majesty; his will was the law, but, with few exceptions,
the humblest citizen or subject might shut the door of his humble cottage in the face of the
monarch and defend his intrusion into that privacy which was regarded as sacred as any of the
kingly prerogatives. . .

‘A man’s house is his castle,’ has become a maxim among the civilized peoples of the earth. His
protection therein has become a matter of constitutional protection in England, America, and
Spain, as well as in other countries.

xxx xxx xxx

So jealously did the people of England regard this right to enjoy, unmolested, the privacy of their
houses, that they might even take the life of the unlawful intruder, if it be nighttime. This was
also the sentiment of the Romans expressed by Tully: ‘Quid enim sanctius quid omni religione
munitius, quam domus uniuscu jusque civium.’ ” [237] (emphasis supplied)
237

The Court reiterated this in the 1911 case of United States v. De Los Reyes, et al., [238] to
238

demonstrate the uncompromising regard placed upon the privacy of the home that cannot be
violated by unreasonable searches and seizures, viz:

“In the case of McClurg vs. Brenton (123 Iowa, 368), the court, speaking of the right of an
officer to enter a private house to search for the stolen goods, said:

‘The right of the citizen to occupy and enjoy his home, however mean or humble, free from
arbitrary invasion and search, has for centuries been protected with the most solicitous care by
every court in the English-speaking world, from Magna Charta down to the present, and is
embodied in every bill of rights defining the limits of governmental power in our own republic.

‘The mere fact that a man is an officer, whether of high or low degree, gives him no more right
than is possessed by the ordinary private citizen to break in upon the privacy of a home and
subject its occupants to the indignity of a search for the evidence of crime, without a legal
warrant procured for that purpose. No amount of incriminating evidence, whatever its source,

236[236] 3 Phil. 381 (1904).

237[237] United States v. Arceo, supra, pp. 384-385.

238[238] 20 Phil. 467 (1911).

will supply the place of such warrant. At the closed door of the home, be it palace or hovel, even
blood-hounds must wait till the law, by authoritative process, bids it open. . .’” [239] (emphasis
239

supplied)

It is not only respect for personality, privacy and property, but to the very dignity of the human
being that lies at the heart of the provision.

There is also public interest involved in the guarantee against unreasonable search and seizure.
The respect that government accords its people helps it elicit allegiance and loyalty of its
citizens. Chief Justice Fernando writes about the right against unreasonable search and seizure
as well as to privacy of communication in this wise:

“These rights, on their face, impart meaning and vitality to that liberty which in a constitutional
regime is a man’s birth-right. There is the recognition of the area of privacy normally
beyond the power of government to intrude. Full and unimpaired respect to that extent is
accorded his personality. He is free from the prying eyes of public officials. He is let alone, a
prerogative even more valued when the agencies of publicity manifest less and less diffidence in
impertinent and unwelcome inquiry into one’s person, his home, wherever he may be minded to
stay, his possessions, his communication. Moreover, in addition to the individual interest,
there is a public interest that is likewise served by these constitutional safeguards. They
make it easier for state authority to enlist the loyalty and allegiance of its citizens, with the
unimpaired deference to one’s dignity and standing as a human being, not only to his
person as such but to things that may be considered necessary appurtenances to a decent
existence. A government that thus recognizes such limits and is careful not to trespass on what is
the domain subject to his sole control is likely to prove more stable and enduring.” [240]
240

(emphasis supplied)

In the 1967 case of Stonehill, et al. v. Diokno, [241] this Court affirmed the sanctity of the home
241

and the privacy of communication and correspondence, viz:

“To uphold the validity of the warrants in question would be to wipe out completely one of
the most fundamental rights guaranteed in our Constitution, for it would place the sanctity
of the domicile and the privacy of communication and correspondence at the mercy of the
whims, caprice or passion of peace officers. This is precisely the evil sought to be remedied
by the constitutional provision above quoted - to outlaw the so-called general warrants. It
is not difficult to imagine what would happen, in times of keen political strife, when the party in
power feels that the minority is likely to wrest it, even though by legal means.” [242] (emphasis
242

supplied)

239[239] United States v. De Los Reyes, et al., supra, p. 473.

240[240] Fernando, E., The Constitution of the Philippines (1974), p. 652.

241[241] 20 SCRA 383 (1967).

242[242] Stonehill v. Diokno, supra, p. 392.

Even after the 1961 Silverman and 1967 Katz cases in the United States, which emphasized
protection of privacy rather than property as the principal purpose of the Fourth Amendment, this
Court declared the avowed purposes of the guarantee in the 1981 case of People v. CFI of Rizal,
Branch IX, Quezon City, [243] viz:
243

“The purpose of the constitutional guarantee against unreasonable searches and seizures is to
prevent violations of private security in person and property and unlawful invasion of the
security of the home by officers of the law acting under legislative or judicial sanction and to
give remedy against such usurpation when attempted. (Adams v. New York, 192 U.S. 858;
Alvero v. Dizon, 76 Phil. 637 [1946]). The right to privacy is an essential condition to the
dignity and happiness and to the peace and security of every individual, whether it be of
home or of persons and correspondence. (Tañada and Carreon, Political Law of the
Philippines, Vol. 2, 139 [1962]). The constitutional inviolability of this great fundamental
right against unreasonable searches and seizures must be deemed absolute as nothing is
closer to a man’s soul than the serenity of his privacy and the assurance of his personal
security. Any interference allowable can only be for the best causes and reasons.” [244]
244

(emphasis supplied)

Even if it were conceded that privacy and not property is the focus of the guarantee as shown by
the growing American jurisprudence, this Court has upheld the right to privacy and its central
place in a limited government such as the Philippines’, viz:

“The right to privacy as such is accorded recognition independently of its identification with
liberty; in itself, it is fully deserving of constitutional protection. The language of Prof. Emerson
is particularly apt: ‘The concept of limited government has always included the idea that
governmental powers stop short of certain intrusions into the personal life of the citizen.
This is indeed one of the basic distinctions between absolute and limited government.
Ultimate and pervasive control of the individual, in all aspects of his life, is the hallmark of the
absolute state. In contrast, a system of limited government safeguards a private sector,
which belongs to the individual, firmly distinguishing it from the public sector, which the
state can control. Protection of this private sector - protection, in other words, of the
dignity and integrity of the individual- has become increasingly important as modern
society has developed. All the forces of technological age - industrialization, urbanization, and
organization - operate to narrow the area of privacy and facilitate intrusion to it. In modern
times, the capacity to maintain and support this enclave of private life marks the difference
between a democratic and a totalitarian society.’” [245] (emphasis supplied)
245

The right to privacy discussed in Justice Douglas’ dissent in the Hayden case is illuminating.
We quote it at length, viz:

243[243] 101 SCRA 86 (1980).

244[244] People v. CFI, supra, pp. 100-101.

245[245] Valmonte v. Belmonte, 170 SCRA 256 (1989), citing Morfe v. Mutuc, 22 SCRA 424
(1968), pp. 444-445.
“Judge Learned Hand stated a part of the philosophy of the Fourth Amendment in United States
v. Poller, 43 F2d 911, 914: ‘[I]t is only fair to observe that the real evil aimed at by the Fourth
Amendment is the search itself, that invasion of a man’s privacy which consists in
rummaging about among his effects to secure evidence against him. If the search is
permitted at all, perhaps it does not make so much difference what is taken away, since the
officers will ordinarily not be interested in what does not incriminate, and there can be no sound
policy in protecting what does.

xxx xxx xxx

The constitutional philosophy is, I think, clear. The personal effects and possessions of the
individual (all contraband and the like excepted) are sacrosanct from prying eyes, from the
long arm of the law, from any rummaging by police. Privacy involves the choice of the
individual to disclose or to reveal what he believes, what he thinks, what he possesses. The
article may be nondescript work of art, a manuscript of a book, a personal account book, a diary,
invoices, personal clothing, jewelry, or whatnot. Those who wrote the Bill of Rights believed
that every individual needs both to communicate with others and to keep his affairs to
himself. That dual aspect of privacy means that the individual should have the freedom to
select for himself the time and circumstances when he will share his secrets with others and
decide the extent of the sharing (footnote omitted). This is his prerogative not the States’.
The Framers, who were as knowledgeable as we, knew what police surveillance meant and how
the practice of rummaging through one’s personal effects could destroy freedom.

xxx xxx xxx

I would . . . leave with the individual the choice of opening his private effects (apart from
contraband and the like) to the police and keeping their contents as secret and their
integrity inviolate. The existence of that choice is the very essence of the right of
privacy.’” [246] (emphasis supplied)
246

Thus, in Griswold v. Connecticut, [247] the United States Supreme Court upheld the right to
247

marital privacy and ruled that lawmakers could not make the use of contraceptives a crime and
sanction the search of marital bedrooms, viz:

“Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs
of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the
marriage relationship.

We deal with a right of privacy older than the Bill of Rights – older than our political parties,
older than our school system. Marriage is a coming together for better or for worse, hopefully
enduring, and intimate to the degree of being sacred. It is an association that promotes a way of
life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or

246[246] Warden, Maryland Penitentiary v. Hayden, 387 US 294 (1967), pp. 320-324.

247[247] 381 US 479 (1965).

social projects. Yet it is an association for as noble a purpose as any involved in our prior
decisions.” [248] (emphasis supplied)
248

In relation to the right against unreasonable searches and seizures, private respondent Dimaano
likewise claims a right to the exclusionary rule, i.e., that evidence obtained from an unreasonable
search cannot be used in evidence against her. To determine whether this right is available to her,
we again examine the history, concept, and purpose of this right in both the American and
Philippine jurisdictions.

The exclusionary rule has had an uneven history in both the United States and Philippine
jurisdictions. In common law, the illegal seizure of evidence did not affect its admissibility
because of the view that physical evidence was the same however it was obtained. As
distinguished from a coerced confession, the illegal seizure did not impeach the authenticity or
reliability of physical evidence. This view prevailed in American jurisdiction until the Supreme
Court ruled in the 1914 Weeks case that evidence obtained in violation of the Fourth
Amendment was inadmissible in federal court as it amounted to theft by agents of the
government. This came to be known as the exclusionary rule and was believed to deter federal
law enforcers from violating the Fourth Amendment. In 1949, the Fourth Amendment was
incorporated into the Due Process Clause under the Fourteenth Amendment [249] and made
249

applicable in the state system in Wolf v. Colorado, [250] but the Court rejected to
250

incorporate the exclusionary rule. At the time Wolf was decided, 17 states followed the Weeks
doctrine while 30 states did not. [251] The Court reasoned:
251

“We cannot brush aside the experience of States which deem the incidence of such conduct by
the police too slight to call for a deterrent remedy not by way of disciplinary measures but by
overriding the relevant rules of evidence. There are, moreover, reasons for excluding evidence
unreasonably obtained by the federal police which are less compelling in the case of police under
State or local authority. The public opinion of a community can far more effectively be exerted
against oppressive conduct on the part of police directly responsible to the community itself than
can local opinion, sporadically aroused, be brought to bear upon remote authority pervasively
exerted throughout the country.” [252]
252

248[248] Griswold v. Connecticut, 381 US 479 (1965), pp. 485-486.

249[249] The Fourteenth Amendment provides in relevant part, viz:

“No State shall make or enforce any law which shall abridge the privileges or immunities
of citizens of the United States; nor shall any State deprive any person of life, liberty, or property
without due process of law; nor deny to any person within its jurisdiction the equal protection of
the laws.”

250[250] 338 US 25 (1949).

251[251] Ducat, C., Constitutional Interpretation: Rights of the Individual, vol. 2 (2000), pp. 641-
642.

252[252] Wolf v. Colorado, supra, pp. 31-32.

This difference in treatment on the federal and state level of evidence obtained illegally resulted
in the “silver platter” doctrine. State law enforcement agents would provide federal officers with
illegally seized evidence, which was then admissible in federal court because, as with illegally
seized evidence by private citizens, federal officers were not implicated in obtaining it. Thus, it
was said that state law enforcers served up the evidence in federal cases in “silver platter.” This
pernicious practice was stopped with the United States Supreme Court’s 1960 decision, Elkins v.
United States. [253] Twelve years after Wolf, the United States Supreme Court reversed Wolf
253

and incorporated the exclusionary rule in the state system in Mapp v. Ohio [254] because other
254

means of controlling illegal police behavior had failed. [255] We quote at length the Mapp ruling
255

as it had a significant influence in the exclusionary rule in Philippine jurisdiction, viz:

“. . . Today we once again examine the Wolf’s constitutional documentation of the right of
privacy free from unreasonable state intrusion, and after its dozen years on our books, are led by
it to close the only courtroom door remaining open to evidence secured by official lawlessness in
flagrant abuse of that basic right, reserved to all persons as a specific guarantee against that very
same unlawful conduct. . .

Since the Fourth Amendment’s right to privacy has been declared enforceable against the States
through the Due Process Clause of the Fourteenth, it is enforceable against them by the same
sanction of exclusion as it is used against the Federal Government. Were it otherwise, then just
as without the Weeks rule the assurance against unreasonable federal searches and seizures
would be a ‘form of words’, valueless and undeserving of mention in a perpetual charter of
inestimable human liberties, so too, without that rule the freedom from state invasions of
privacy would be so ephemeral and so neatly severed from its conceptual nexus with the
freedom from all brutish means of coercing evidence as not to permit this Court’s high
regard as freedom ‘implicit in the concept of ordered liberty.’ At that time that the Court
held in Wolf that the amendment was applicable to the States through the Due Process Clause,
the cases of this court as we have seen, had steadfastly held that as to federal officers the Fourth
Amendment included the exclusion of the evidence seized in violation of its provisions. Even
Wolf ‘stoutly adhered’ to that proposition. The right to privacy, when conceded operatively
enforceable against the States, was not susceptible of destruction by avulsion of the sanction
upon which its protection and enjoyment had always been deemed dependent under the Boyd,
Weeks and Silverthorne Cases. Therefore, in extending the substantive protections of due
process to all constitutionally unreasonable searches - state or federal - it was logically and
constitutionally necessary that the exclusion doctrine - an essential part of the right to
privacy - be also insisted upon as an essential ingredient of the right newly recognized by
the Wolf case. In short, the admission of the new constitutional right by Wolf could not
consistently tolerate denial of its most important constitutional privilege, namely, the
exclusion of the evidence which an accused had been forced to give by reason of the
unlawful seizure. To hold otherwise is to grant the right but in reality to withhold its
privilege and enjoyment. Only last year the Court itself recognized that the purpose of the

253[253] 364 US 206 (1960).

254[254] 367 US 643 (1961).

255[255] Ducat, C., supra, pp. 641-642.

exclusionary rule ‘is to deter - to compel respect for the constitutional guaranty in the only
available way - by removing the incentive to disregard it.’ (Elkins v. United States, 364 US at
217)

xxx xxx xxx

The ignoble shortcut to conviction left open to the State tends to destroy the entire system of
constitutional restraints on which the liberties of the people rest. (Cf. Marcus v. Search Warrant
of Property, 6 L ed 2d post, p. 1127) Having once recognized that the right to privacy embodied
in the Fourth Amendment is enforceable against the States, and that the right to be secure against
rude invasions of privacy by state officers is, therefore constitutional in origin, we can no longer
permit that right to remain an empty promise. Because it is enforceable in the same manner and
to like effect as other basic rights secured by its Due Process Clause, we can no longer permit it
to be revocable at the whim of any police officer who, in the name of law enforcement itself,
chooses to suspend its enjoyment. Our decision, founded on reason and truth, gives to the
individual no more than that which the Constitution guarantees him, to the police officer
no less than that to which honest law enforcement is entitled, and to the courts, that judicial
integrity so necessary in the true administration of justice.” [256] (emphasis supplied)
256

It is said that the exclusionary rule has three purposes. The major and most often invoked is the
deterrence of unreasonable searches and seizures as stated in Elkins v. United States [257] and
257

quoted in Mapp: “(t)he rule is calculated to prevent, not repair. Its purpose is to deter – to
compel respect for constitutional guaranty in the only effective available way – by removing the
incentive to disregard it.” [258] Second is the “imperative of judicial integrity”, i.e., that the
258

courts do not become “accomplices in the willful disobedience of a Constitution they are sworn
to uphold . . . by permitting unhindered governmental use of the fruits of such invasions. . . A
ruling admitting evidence in a criminal trial . . . has the necessary effect of legitimizing the
conduct which produced the evidence, while an application of the exclusionary rule withholds
the constitutional imprimatur.” [259] Third is the more recent purpose pronounced by some
259

members of the United States Supreme Court which is that “of assuring the people – all potential
victims of unlawful government conduct – that the government would not profit from its lawless
behavior, thus minimizing the risk of seriously undermining popular trust in government.” [260] 260

The focus of concern here is not the police but the public. This third purpose is implicit in the
Mapp declaration that “no man is to be convicted on unconstitutional evidence.” [261]261

256[256] Mapp v. Ohio, supra, pp. 654-660.

257[257] 364 US 206 (1960).

258[258] Id., p. 217.

259[259] LaFave, W. Search and Seizure: A Treatise in the Fourth Amendment, vol. 1 (2nd ed.,
1987), pp. 16-17, citing Terry v. Ohio, 392 US 1 (1968).

260[260] Id., p. 17, citing United States v. Calandra, 414 US 338 (1974), dissent.

261[261] Id.
In Philippine jurisdiction, the Court has likewise swung from one position to the other on the
exclusionary rule. In the 1920 case of Uy Kheytin v. Villareal, [262] the Court citing Boyd,
262

ruled that “seizure or compulsory production of a man’s private papers to be used against him”
was tantamount to self-incrimination and was therefore “unreasonable search and seizure.” This
was a proscription against “fishing expeditions.” The Court restrained the prosecution from
using the books as evidence. Five years later or in 1925, we held in People v. Carlos [263] that
263

although the Boyd and Silverthorne Lumber Co. and Silverthorne v. United States [264] cases
264

are authorities for the doctrine that documents obtained by illegal searches were inadmissible in
evidence in criminal cases, Weeks modified this doctrine by adding that the illegality of the
search and seizure should have initially been directly litigated and established by a pre-trial
motion for the return of the things seized. As this condition was not met, the illegality of the
seizure was not deemed an obstacle to admissibility. The subject evidence was nevertheless
excluded, however, for being hearsay. Thereafter, in 1932, the Court did not uphold the defense
of self-incrimination when “fraudulent books, invoices and records” that had been seized were
presented in evidence in People v. Rubio. [265] The Court gave three reasons: (1) the public has
265

an interest in the proper regulation of the party’s books; (2) the books belonged to a corporation
of which the party was merely a manager; and (3) the warrants were not issued to fish for
evidence but to seize “instruments used in the violation of [internal revenue] laws” and “to
further prevent the perpetration of fraud.” [266]
266

The exclusionary rule applied in Uy Kheytin was reaffirmed seventeen years thence in the 1937
case of Alvarez v. Court of First Instance [267] decided under the 1935 Constitution. The
267

Court ruled that the seizure of books and documents for the purpose of using them as evidence in
a criminal case against the possessor thereof is unconstitutional because it makes the warrant
unreasonable and the presentation of evidence offensive of the provision against self-
incrimination. At the close of the Second World War, however, the Court, in Alvero v. Dizon, 268

[268] again admitted in evidence documents seized by United States military officers without a
search warrant in a prosecution by the Philippine Government for treason. The Court reasoned
that this was in accord with the Laws and Customs of War and that the seizure was incidental to
an arrest and thus legal. The issue of self-incrimination was not addressed at all and instead, the
Court pronounced that even if the seizure had been illegal, the evidence would nevertheless be

262[262] 42 Phil. 886 (1920).

263[263] 47 Phil. 626 (1925).

264[264] 251 US 385 (1919).

265[265] 57 Phil. 384 (1932).

266[266] Bernas, J., The 1987 Constitution of the Republic of the Philippines: A Commentary
(1996), pp. 194-195.

267[267] 64 Phil. 33 (1937).

268[268] 76 Phil. 637 (1946).

admissible following jurisprudence in the United States that evidence illegally obtained by state
officers or private persons may be used by federal officers. [269]
269

Then came Moncado v. People’s Court [270] in 1948. The Court made a categorical declaration
270

that “it is established doctrine in the Philippines that the admissibility of evidence is not affected
by the illegality of the means used for obtaining it.” It condemned the “pernicious influence” of
Boyd and totally rejected the doctrine in Weeks as “subversive of evidentiary rules in Philippine
jurisdiction.” The ponencia declared that the prosecution of those guilty of violating the right
against unreasonable searches and seizures was adequate protection for the people. Thus it
became settled jurisprudence that illegally obtained evidence was admissible if found to be
relevant to the case [271] until the 1967 landmark decision of Stonehill v. Diokno [272] which
271 272

overturned the Moncado rule. The Court held in Stonehill, viz:

“. . . Upon mature deliberation, however, we are unanimously of the opinion that the position
taken in the Moncado case must be abandoned. Said position was in line with the American
common law rule, that the criminal should not be allowed to go free merely ‘because the
constable has blundered,’ (People v. Defore, 140 NE 585) upon the theory that the constitutional
prohibition against unreasonable searches and seizures is protected by means other than the
exclusion of evidence unlawfully obtained (Wolf v. Colorado, 93 L.Ed. 1782), such as common-
law action for damages against the searching officer, against the party who procured the issuance
of the search warrant and against those assisting in the execution of an illegal search, their
criminal punishment, resistance, without liability to an unlawful seizure, and such other legal
remedies as may be provided by other laws.

However, most common law jurisdictions have already given up this approach and eventually
adopted the exclusionary rule, realizing that this is the only practical means of enforcing the
constitutional injunction against unreasonable searches and seizures.” [273]
273

The Court then quoted the portion of the Mapp case which we have quoted at length above in
affirming that the exclusionary rule is part and parcel of the right against unreasonable
searches and seizures. The Stonehill ruling was incorporated in Article 4, Section 4(2) of the
1973 Constitution and carried over to Article 3, Section 3(2) of the 1987 Constitution.

V. Application of the Natural Law

Culled from History and Philosophy:

269[269] Bernas, J., supra note 266, pp. 197-198.

270[270] 80 Phil. 1 (1948), pp. 1, 3-4.

271[271] Wong & Lee v. Collector of Internal Revenue, et al., 104 Phil. 469 (1958), citing
Moncado v. People’s Court, 8 Phil. 1 (1948); Medina v. Collector of Internal Revenue, 110 Phil.
912 (1961), citing Wong & Lee, supra; Bernas, J., supra note 266, pp. 198-199.

272[272] 20 SCRA 383 (1967).

273[273] Stonehill v. Diokno, supra, pp. 393-394.

Are the Rights Against Unreasonable Search and Seizure
and to the Exclusion of Illegally Seized Evidence Natural Rights
which Private Respondent Dimaano Can Invoke?

In answering this question, Justice Goldberg’s concurring opinion in the Griswold case serves as
a helpful guidepost to determine whether a right is so fundamental that the people cannot be
deprived of it without undermining the tenets of civil society and government, viz:

“In determining which rights are fundamental, judges are not left at large to decide cases in light
of their personal and private notions. Rather, they must look to the ‘traditions and [collective]
conscience of our people’ to determine whether a principle is ‘so rooted [there] . . . as to be
ranked as fundamental.’ (Snyder v. Com. of Massachusetts, 291 U.S. 97, 105 (1934)). The
inquiry is whether a right involved ‘is of such character that it cannot be denied without violating
those ‘fundamental principles of liberty and justice which lie at the base of all our civil and
political institutions.’ . . . Powell v. State of Alabama, 287 U.S. 45, 67 (1932)” [274] (emphasis
274

supplied)

In deciding a case, invoking natural law as solely a matter of the judge’s personal preference,
invites criticism that the decision is a performative contradiction and thus self-defeating. Critics
would point out that while the decision invokes natural law that abhors arbitrariness, that same
decision is tainted with what it abhors as it stands on the judge’s subjective and arbitrary choice
of a school of legal thought. Just as one judge will fight tooth and nail to defend the natural law
philosophy, another judge will match his fervor in defending a contrary philosophy he espouses.
However, invoking natural law because the history, tradition and moral fiber of a people
indubitably show adherence to it is an altogether different story, for ultimately, in our political
and legal tradition, the people are the source of all government authority, and the courts are their
creation. While it may be argued that the choice of a school of legal thought is a matter of
opinion, history is a fact against which one cannot argue - and it would not be turning somersault
with history to say that the American Declaration of Independence and the consequent adoption
of a constitution stood on a modern natural law theory foundation as this is “universally taken for
granted by writers on government.” [275] It is also well-settled in Philippine history that the
275

American system of government and constitution were adopted by our 1935 Constitutional
Convention as a model of our own republican system of government and constitution. In the
words of Claro M. Recto, President of the Convention, the 1935 Constitution is “frankly an
imitation of the American Constitution.” Undeniably therefore, modern natural law theory,
specifically Locke’s natural rights theory, was used by the Founding Fathers of the American
constitutional democracy and later also used by the Filipinos. [276] Although the 1935
276

Constitution was revised in 1973, minimal modifications were introduced in the 1973
Constitution which was in force prior to the EDSA Revolution. Therefore, it could confidently
be asserted that the spirit and letter of the 1935 Constitution, at least insofar as the system of
government and the Bill of Rights were concerned, still prevailed at the time of the EDSA

274[274] Griswold v. Connecticut, supra, p. 493.

275[275] See Note 65, supra.

276[276] Pascual, C., Introduction to Legal Philosophy (1989), pp. 22-23.

Revolution. Even the 1987 Constitution ratified less than a year from the EDSA Revolution
retained the basic provisions of the 1935 and 1973 Constitutions on the system of government
and the Bill of Rights, with the significant difference that it emphasized respect for and
protection of human rights and stressed that sovereignty resided in the people and all government
authority emanates from them.

Two facts are easily discernible from our constitutional history. First, the Filipinos are a
freedom-loving race with high regard for their fundamental and natural rights. No amount of
subjugation or suppression, by rulers with the same color as the Filipinos’ skin or otherwise,
could obliterate their longing and aspiration to enjoy these rights. Without the people’s consent
to submit their natural rights to the ruler, [277] these rights cannot forever be quelled, for like
277

water seeking its own course and level, they will find their place in the life of the individual and
of the nation; natural right, as part of nature, will take its own course. Thus, the Filipinos fought
for and demanded these rights from the Spanish and American colonizers, and in fairly recent
history, from an authoritarian ruler. They wrote these rights in stone in every constitution they
crafted starting from the 1899 Malolos Constitution. Second, although Filipinos have given
democracy its own Filipino face, it is undeniable that our political and legal institutions are
American in origin. The Filipinos adopted the republican form of government that the
Americans introduced and the Bill of Rights they extended to our islands, and were the keystones
that kept the body politic intact. These institutions sat well with the Filipinos who had long
yearned for participation in government and were jealous of their fundamental and natural rights.
Undergirding these institutions was the modern natural law theory which stressed natural rights
in free, independent and equal individuals who banded together to form government for the
protection of their natural rights to life, liberty and property. The sole purpose of government is
to promote, protect and preserve these rights. And when government not only defaults in its duty
but itself violates the very rights it was established to protect, it forfeits its authority to demand
obedience of the governed and could be replaced with one to which the people consent. The
Filipino people exercised this highest of rights in the EDSA Revolution of February 1986.

I will not endeavor to identify every natural right that the Filipinos fought for in EDSA. The
case at bar merely calls us to determine whether two particular rights - the rights against
unreasonable search and seizure and to the exclusion of evidence obtained therefrom - have the
force and effect of natural rights which private respondent Dimaano can invoke against the
government.

I shall first deal with the right against unreasonable search and seizure. On February 25, 1986,
the new president, Corazon Aquino, issued Proclamation No. 1 where she declared that she and
the vice president were taking power in the name and by the will of the Filipino people and
pledged “to do justice to the numerous victims of human rights violations.” [278] It is implicit
278

from this pledge that the new government recognized and respected human rights. Thus, at the
time of the search on March 3, 1986, it may be asserted that the government had the duty, by its
own pledge, to uphold human rights. This presidential issuance was what came closest to a
positive law guaranteeing human rights without enumerating them. Nevertheless, even in the

277[277] See C. Patterson, supra, p. 52.

278[278] Proclamation No. 1 (1986).

absence of a positive law granting private respondent Dimaano the right against unreasonable
search and seizure at the time her house was raided, I respectfully submit that she can invoke her
natural right against unreasonable search and seizure.

The right against unreasonable search and seizure is a core right implicit in the natural right to
life, liberty and property. Our well-settled jurisprudence that the right against unreasonable
search and seizure protects the people’s rights to security of person and property, to the sanctity
of the home, and to privacy is a recognition of this proposition. The life to which each person
has a right is not a life lived in fear that his person and property may be unreasonably violated by
a powerful ruler. Rather, it is a life lived with the assurance that the government he established
and consented to, will protect the security of his person and property. The ideal of security in life
and property dates back even earlier than the modern philosophers and the American and French
revolutions, but pervades the whole history of man. It touches every aspect of man’s existence,
thus it has been described, viz:

“The right to personal security emanates in a person’s legal and uninterrupted enjoyment of his
life, his limbs, his body, his health, and his reputation. It includes the right to exist, and the right
to enjoyment of life while existing, and it is invaded not only by a deprivation of life but also of
those things which are necessary to the enjoyment of life according to the nature, temperament,
and lawful desires of the individual.” [279]
279

The individual in the state of nature surrendered a portion of his undifferentiated liberty and
agreed to the establishment of a government to guarantee his natural rights, including the right to
security of person and property, which he could not guarantee by himself. Similarly, the natural
right to liberty includes the right of a person to decide whether to express himself and
communicate to the public or to keep his affairs to himself and enjoy his privacy. Justice
Douglas reminds us of the indispensability of privacy in the Hayden case, thus: “Those who
wrote the Bill of Rights believed that every individual needs both to communicate with others
and to keep his affairs to himself.” A natural right to liberty indubitably includes the freedom to
determine when and how an individual will share the private part of his being and the extent of
his sharing. And when he chooses to express himself, the natural right to liberty demands that he
should be given the liberty to be truly himself with his family in his home, his haven of refuge
where he can “retreat from the cares and pressures, even at times the oppressiveness of the
outside world,” to borrow the memorable words of Chief Justice Fernando. For truly, the drapes
of a man’s castle are but an extension of the drapes on his body that cover the essentials. In
unreasonable searches and seizures, the prying eyes and the invasive hands of the government
prevent the individual from enjoying his freedom to keep to himself and to act undisturbed
within his zone of privacy. Finally, indispensable to the natural right to property is the right to
one’s possessions. Property is a product of one’s toil and might be considered an expression and
extension of oneself. It is what an individual deems necessary to the enjoyment of his life. With
unreasonable searches and seizures, one’s property stands in danger of being rummaged through
and taken away. In sum, as pointed out in De Los Reyes, persons are subjected to indignity by
an unreasonable search and seizure because at bottom, it is a violation of a person’s natural right
to life, liberty and property. It is this natural right which sets man apart from other beings, which
gives him the dignity of a human being.

279[279] Sandifer, D. and L. Scheman, The Foundation of Freedom (1966), pp. 44-45.
 It is understandable why Filipinos demanded that every organic law in their history
guarantee the protection of their natural right against unreasonable search and seizure and why
the UDHR treated this right as a human right. It is a right inherent in the right to life, liberty and
property; it is a right “appertain(ing) to man in right of his existence”, a right that “belongs to
man by virtue of his nature and depends upon his personality”, and not merely a civil right
created and protected by positive law. The right to protect oneself against unreasonable search
and seizure, being a right indispensable to the right to life, liberty and property, may be derived
as a conclusion from what Aquinas identifies as man’s natural inclination to self-preservation and
self-actualization. Man preserves himself by leading a secure life enjoying his liberty and
actualizes himself as a rational and social being in choosing to freely express himself and
associate with others as well as by keeping to and knowing himself. For after all, a reflective
grasp of what it means to be human and how one should go about performing the functions
proper to his human nature can only be done by the rational person himself in the confines of his
private space. Only he himself in his own quiet time can examine his life knowing that an
unexamined life is not worth living.

Every organic law the Filipinos established (the Malolos, 1935, 1973, and 1987 Constitutions)
and embraced (the Instruction, Philippine Bill of 1902, and Jones Law) in the last century
included a provision guaranteeing the people’s right against unreasonable search and seizure
because the people ranked this right as fundamental and natural. Indeed, so fundamental and
natural is this right that the demand for it spurred the American revolution against the English
Crown. It resulted in the Declaration of Independence and the subsequent establishment of the
American Constitution about 200 years ago in 1789. A revolution is staged only for the most
fundamental of reasons - such as the violation of fundamental and natural rights - for prudence
dictates that “governments long established should not be changed for light and transient
reasons.” [280]
280

Considering that the right against unreasonable search and seizure is a natural right, the
government cannot claim that private respondent Dimaano is not entitled to the right for the
reason alone that there was no constitution granting the right at the time the search was
conducted. This right of the private respondent precedes the constitution, and does not depend
on positive law. It is part of natural rights. A violation of this right along with other rights stirred
Filipinos to revolutions. It is the restoration of the Filipinos’ natural rights that justified the
establishment of the Aquino government and the writing of the 1987 Constitution. I submit that
even in the absence of a constitution, private respondent Dimaano had a fundamental and natural
right against unreasonable search and seizure under natural law.

280[280] Estrada v. Desierto, supra, p. 549, citing the Declaration of Independence. That the
right against unreasonable searches and seizures is a natural human right may be inferred from
the 1949 case of Wolf v. Colorado, where Justice Frankfurter said:

“The knock at the door, whether by day or night, as a prelude to a search, without authority of
law but solely on the authority of the police, did not need the commentary of recent history to
be condemned as inconsistent with the conception of human rights enshrined in the history
and basic constitutional documents of the English-speaking peoples.”
We now come to the right to the exclusion of evidence illegally seized. From Stonehill quoting
Mapp, we can distill that the exclusionary rule in both the Philippine and American jurisdictions
is a freedom “implicit in the concept of ordered liberty” for it is a necessary part of the guarantee
against unreasonable searches and seizures, which in turn is “an essential part of the right to
privacy” that the Constitution protects. If the exclusionary rule were not adopted, it would be to
“grant the right (against unreasonable search and seizure) but in reality to withhold its privilege
and enjoyment.” Thus, the inevitable conclusion is that the exclusionary rule is likewise a
natural right that private respondent Dimaano can invoke even in the absence of a constitution
guaranteeing such right.

To be sure, the status of the exclusionary right as a natural right is admittedly not as indisputable
as the right against unreasonable searches and seizures which is firmly supported by philosophy
and deeply entrenched in history. On a lower tier, arguments have been raised on the
constitutional status of the exclusionary right. Some assert, on the basis of United States v.
Calandra, [281] that it is only a “judicially-created remedy designed to safeguard Fourth
281

Amendment rights generally through its deterrent effect, rather than a personal constitutional
right of the party aggrieved.” [282] Along the same line, others contend that the right against
282

unreasonable search and seizure merely requires some effective remedy, and thus Congress may
abolish or limit the exclusionary right if it could replace it with other remedies of a comparable
or greater deterrent effect. But these contentions have merit only if it is conceded that the
exclusionary rule is merely an optional remedy for the purpose of deterrence. [283]
283

Those who defend the constitutional status of the exclusionary right, however, assert that there is
nothing in Weeks that says that it is a remedy [284] or a manner of deterring police officers. [285]
284 285

In Mapp, while the court discredited other means of enforcing the Fourth Amendment cited in
Wolf, the thrust of the opinion was broader. Justice Clarke opined that “no man is to be
convicted on unconstitutional evidence” [286] and held that “the exclusionary rule is an essential
286

part of both the Fourth and Fourteenth Amendments.” [287]

287

Formulated in the Aquinian concept of human law, the debate is whether the exclusionary right is
the first kind of human law which may be derived as a conclusion from the natural law precept

281[281] 414 US 338 (1974).

282[282] Id., p. 348.

283[283] LaFave, W., supra, p. 20.

284[284] Id., citing Kamisar, Does (Did) (Should) the Exclusionary Rule Rest on a “Principled
Basis” Rather than an “Empirical Proposition”? 16 Creighton L. Rev. (1983) 565, p. 598.

285[285] Id., citing Allen, The Judicial Quest for Penal Justice: The Warren Court and the
Criminal Cases, 1975 U. Ill. L.F. 518, 536, n. 90.

286[286] Mapp v. Ohio, supra, p. 657.

287[287] LaFave, supra, pp. 19-20.

that one should do no harm to another man, in the same way that conclusions are derived from
scientific principles, in which case the exclusionary right has force from natural law and does not
depend on positive law for its creation; or if it is the second kind of human law which is derived
by way of determination of natural law, in the same way that a carpenter determines the shape of
a house, such that it is merely a judicially or legislatively chosen remedy or deterrent, in which
case the right only has force insofar as positive law creates and protects it.

In holding that the right against unreasonable search and seizure is a fundamental and natural
right, we were aided by philosophy and history. In the case of the exclusionary right, philosophy
can also come to the exclusionary right’s aid, along the lines of Justice Clarke’s proposition in
the Mapp case that no man shall be convicted on unconstitutional evidence. Similarly, the
government shall not be allowed to convict a man on evidence obtained in violation of a natural
right (against unreasonable search and seizure) for the protection of which, government and the
law were established. To rule otherwise would be to sanction the brazen violation of natural
rights and allow law enforcers to act with more temerity than a thief in the night for they can
disturb one’s privacy, trespass one’s abode, and steal one’s property with impunity. This, in turn,
would erode the people’s trust in government.

Unlike in the right against unreasonable search and seizure, however, history cannot come to the
aid of the exclusionary right. Compared to the right against unreasonable search and seizure, the
exclusionary right is still in its infancy stage in Philippine jurisdiction, having been etched only
in the 1973 Constitution after the 1967 Stonehill ruling which finally laid to rest the debate on
whether illegally seized evidence should be excluded. In the United States, the exclusionary
right’s genesis dates back only to the 1885 Boyd case on the federal level, and to the 1961 Mapp
case in the state level. The long period of non-recognition of the exclusionary right has not
caused an upheaval, much less a revolution, in both the Philippine and American jurisdictions.
Likewise, the UDHR, a response to violation of human rights in a particular period in world
history, did not include the exclusionary right. It cannot confidently be asserted therefore that
history can attest to its natural right status. Without the strength of history and with philosophy
alone left as a leg to stand on, the exclusionary right’s status as a fundamental and natural right
stands on unstable ground. Thus, the conclusion that it can be invoked even in the absence of a
constitution also rests on shifting sands.

Be that as it may, the exclusionary right is available to private respondent Dimaano as she
invoked it when it was already guaranteed by the Freedom Constitution and the 1987
Constitution. The AFP Board issued its resolution on Ramas’ unexplained wealth only on July
27, 1987. The PCGG’s petition for forfeiture against Ramas was filed on August 1, 1987 and
was later amended to name the Republic of the Philippines as plaintiff and to add private
respondent Dimaano as co-defendant. Following the petitioner’s stance upheld by the majority
that the exclusionary right is a creation of the Constitution, then it could be invoked as a
constitutional right on or after the Freedom Constitution took effect on March 25, 1986 and later,
when the 1987 Constitution took effect on February 2, 1987.

VI. Epilogue
The Filipino people have fought revolutions, by the power of the pen, the strength of the sword
and the might of prayer to claim and reclaim their fundamental rights. They set these rights in
stone in every constitution they established. I cannot believe and so hold that the Filipinos
during that one month from February 25 to March 24, 1986 were stripped naked of all their
rights, including their natural rights as human beings. With the extraordinary circumstances
before, during and after the EDSA Revolution, the Filipinos simply found themselves without a
constitution, but certainly not without fundamental rights. In that brief one month, they retrieved
their liberties and enjoyed them in their rawest essence, having just been freed from the claws of
an authoritarian regime. They walked through history with bare feet, unshod by a constitution,
but with an armor of rights guaranteed by the philosophy and history of their constitutional
tradition. Those natural rights inhere in man and need not be granted by a piece of paper.

To reiterate, the right against unreasonable search and seizure which private respondent Dimaano
invokes is among the sacred rights fought for by the Filipinos in the 1986 EDSA Revolution. It
will be a profanity to deny her the right after the fight had been won. It does not matter whether
she believed in the righteousness of the EDSA Revolution or she contributed to its cause as an
alleged ally of the dictator, for as a human being, she has a natural right to life, liberty and
property which she can exercise regardless of existing or non-existing laws and irrespective of
the will or lack of will of governments.

I wish to stress that I am not making the duty of the Court unbearably difficult by taking it to task
every time a right is claimed before it to determine whether it is a natural right which the
government cannot diminish or defeat by any kind of positive law or action. The Court need not
always twice measure a law or action, first utilizing the constitution and second using natural law
as a yardstick. However, the 1986 EDSA Revolution was extraordinary, one that borders the
miraculous. It was the first revolution of its kind in Philippine history, and perhaps even in the
history of this planet. Fittingly, this separate opinion is the first of its kind in this Court, where
history and philosophy are invoked not as aids in the interpretation of a positive law, but to
recognize a right not written in a papyrus but inheres in man as man. The unnaturalness of the
1986 EDSA revolution cannot dilute nor defeat the natural rights of man, rights that antedate
constitutions, rights that have been the beacon lights of the law since the Greek civilization.
Without respect for natural rights, man cannot rise to the full height of his humanity.

I concur in the result.