CONSTRUCTING THE PAST: LEGAL DOCUMENTS AS HISTORICAL ARTIFACTS

*

Al A. Parreño**

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Abstract

This paper argues that legal documents are artifacts, based on Western and local understanding. To prove this, the definition and elements of an artifact and legal documents are dissected. As artifacts, these legal documents in turn, can be utilized as powerful tools in constructing the past, because of the method of their creation, preservation and use.

Introduction

Common legal documents are artifacts. They are one of the best means to construct selected portions of the past. With the process, detail and emphasis placed on them by society and individuals, they provide a very healthy source of data.

Many think of artifacts as ancient creations hidden and then rediscovered through long and tedious digging and exploration under scorching heat in far-flung places. To the public, they are jars, weapons, statues and hidden talismans “shrouded in mystery”.  And yet, they are not simply just that.

The analysis in the next succeeding pages will show that they are also boring documents scattered in old court rooms, filed routinely in staff rooms, read by passionate jailed litigants and by judges. They are in the barangays carefully handwritten by a “kagawad” or a logbook with a police inspector. As important as royal burials, shipwrecks and forgotten cities, they too, now or a hundred years hence, tell a very good story.

1.     What is an artifact?

Using both the Western and Philippine lenses, the succeeding discussions show that an artifact is a verifiable product of human workmanship or skill. Neither age nor tangibility is an element.

  1. Artifacts defined from both Western and Philippine Concept

The definition of the word is uncomplicated. This very simplicity makes it prone to abuse and distinct misuse, thus, there is a need to clarify the matter.

The common understanding of artifacts is found in many dictionaries. Webster’s Third New International Dictionary defines an artifact as “a usually simple object (as a tool or an ornament) showing human workmanship and modification.” The Oxford English Dictionary defines an artifact as “anything made by human art and workmanship.”1

The common understanding of the “artifact” stems from its source. Taken from the Latin words ars (art), and factum, the past participle of facere (to make), it is what its origin says it is – “to make art”.2

In dividing natural things from those from other causes, Aristotle intricately defined the concept of an artifact as artificial products.3 It is for this reason that the general concept explains it for what it is not – “not made of nature”.4  In its simple definition, it is a creation of the mind. In the Proceedings of the Aristotelian Society, the same concept of an author or a creator was likewise emphasized, thus delineating it from natural works.5

The Philippines has adopted a similar concept, as embodied in Section 1(f) of the Amended Cultural Properties Preservation Act:

f. Artifacts are articles which are products of human skills or workmanship, especially in the simple product of primitive arts or industry representing past eras or periods.6 (Emphasis supplied)

As gleaned from above, this definition does not emphasize age, but rather put premium on its character as “product of human skills or workmanship.”

It is fortunate therefore for purposes of standardization that in its generality, both the Western and Philippine concept lie in similar planes. And yet, the general terms are not precise. Using both understandings, the probable misconceptions through a discussion of the common elements can be carved out.

  1. The Elements of an Artifact

Both the Western and local concepts of an artifact recognize the first element: man. For the purposes of this discussion, the definition is confined to something that is intentionally made by a human agent for some purpose.

The second element common to both Western and local concept is workmanship or skill. We recognize however, the ability of man to effect changes without necessarily using skill or intellect; for example, a driver breaking a small tree. Surely, the broken tree created by imprudence, while arguably a creation, cannot necessarily be classified as an artifact as there simply was no intent or skill involved.

The third element is that it must involve a product that for practical purposes is verifiable.  The word product pertains to anything produced.7 The universal understanding of this concept, as well as in the United Nations Classification system, includes both goods and services.8

  1. But Should They Be Tangible?

Tangibility implies “touch.”  What then is the nature of the product or output as defined above? Is an electronic video an artifact? Are movies or digital recordings artifacts?  Are thoughts or mere intents artifacts? Feelings? Love? Distinctions should therefore be made in light of this fundamental problem.

The criterion is not tangibility; it is verifiability, or in the context of Karl Popper, “falsifiability or refutability.”9 The test is:“can we prove or ‘disprove’ its actual existence?” 

1. Why tangibility is not an element 

Electronic creations are not tangible, yet they are still creations. This concept is similar to the Philippine understanding of cultural property as defined under the National Cultural Heritage Act:10

 (o) “Cultural property” shall refer to all products of human creativity by which a people and a nation reveal their identity, including churches, mosques and other places of religious worship, schools and natural history specimens and sites, whether public or privately-owned, movable or immovable, and tangible or intangible.” (Emphasis supplied)

In light of  man’s ability to create, “tangibility” can never be the basis in determining whether a product is in fact, an artifact.

2. Why verifiability is important

So if tangibility is not necessary, what about the other extreme: what of mere thought? There can be no doubt that they are creations of man, involving, up to a certain point, the application of skills. Thus, they can also be products.

In determining whether “thought” or “identity” is an artifact, Joanne Baldine asks:11

What of human identity?  If it is an artifact, and thereby in some sense artificial, in what sense do we identify the self as human and part of nature?  If it is an artifact, then is the self merely a product of our own reflective creation, of technological advance, of history, or a by-product of the latest cultural trends?

And yet thought, while it is an object of man’s creation, cannot be completely and accurately verified.

Men, through law, have tried to quantify what a creation is for the purpose of intellectual protection in the TRIPS agreement.12 In its local legislation, the Philippines has similarly not included mere “thought” as subject of intellectual protection.13

In contrast to thoughts,  artifacts are products that are verifiable. Thus, until such time that we can verify thoughts, we cannot classify them as artifacts using present means.

  1. Age is not an element of an artifact 

Products need not be of a certain age before they are classified as artifacts. The Philippine definition of artifacts as provided under Section 1(f) of the Amended Cultural Properties Preservation Act implies that age is not an important factor in determining whether a product is an artifact. More specifically, the use of the word, “especially” merely connotes an emphasis stating  “significance” but not necessarily an exemption or restriction. To wit, “especially for you” means primarily for you. To the chagrin of a jealous lover, it subtly connotes it is “also meant for others”, though with less vigor.

Perusing the other terminologies the Philippines uses in defining cultural history, we find the “time element” is clearly stated in other areas, such as in the definition of “antiques.” To quote the National Cultural Heritage Act of 2009:14

(c) “Antique” shall refer to a cultural property found locally which is one hundred (100) years in age, more or less, the production of which has ceased. (Emphasis supplied)

In remedial law, one element of ancient documents is that they are thirty years or more.15 In classifying what “cultural property” is considered important, structures and archival material/document must be at least fifty (50) years old.16 It can be observed in these three examples that the word “especially” was not used. Rather,  the time requirement was expressly made a requisite.

From here, an artifact therefore is a product of workmanship or skill. It must be created consciously, not through accident. Its age is not relevant. It does not have to be tangible but must be verifiable.

2. What is a legal document?

Having clarified the elements of an artifact, we now determine whether legal documents are artifacts. To do so, we must, of course, understand what a legal document is.

Most European documentalists think of documents by themselves as records, not necessarily paper. One documentalist described it as “any physical or symbolic sign, preservedor recorded, intended to represent, to reconstruct, or to demonstrate a physical or conceptual phenomenon.”17

Paul Otlet, the creator of the Universal Decimal Classification,18 aimed to categorize all knowledge and extended the definition of a ‘‘document’’ further. He admits of documents as records but he specifically includes artifacts as a subset of documents. He posits that they are graphic and written records, which are representations of ideas or of objects.  He however, extended this to include natural objects, artifacts, and objects bearing traces of human activity (such as archaeological finds).19

This understanding of documents as a record is parallel to the Philippine understanding, as embodied in Section 2 of Rule 128 of the Rules of Court, which provides that “Documents as evidence consist of writing or any material containing letters, words, numbers, figures, symbols or other modes of written expression.”

Meanwhile, the advent of new forms of means of capturing records has implelled both Congress20 and the Supreme Court21 to include paper and electronic records in its definition of documents.

The document therefore per se can include any material, but what makes it an artifact as defined is the inclusion of workmanship into it as will be shown below.

To consider the document legal, it is important to examine the concept of what is legal or law. Law or the practice of law22 is encompassing and broad under both Western and Philippine definitions.

Under the Western concept, the practice of law is defined as  “the rendition of services requiring the knowledge and the application of legal principles and technique to serve the interest of another with his consent.”23 The practice of law is not limited to the conduct of cases in court.24

Under the Philippine concept, this definition was expanded. Thus, practice of law is defined as “any activity, in or out of court, which requires the application of law, legal procedure, knowledge, training and experience.”25

Combining the common and generic understanding therefore of the terms legal and documents, we can understand it as: writing or any material containing letters, words, numbers, figures, symbols or other modes of written expression from any activity, in or out of court, which requires the application of law, legal procedure, knowledge, training and experience.26 [CG1

3. Why Legal Documents Are Artifacts

We now use the same parameters of what an artifact is to legal documents. The elements as described are: (1) Man; (2) Workmanship or skill; and (3) Verifiable product.

Under these parameters, legal documents clearly fall within the definition of what an artifact is.

Firstly, the involvement of man is evident and beyond debate.  Lawyer jokes notwithstanding, we know that all legal documents are products of man (the first element) using workmanship or skill (the second element).  They are created consciously even though they sometimes look like creatures of accident.  They are products easily verifiable (the second element) being mostly in paper or electronic form. Since the document’s age is not important, it is not relevant.  While tangibility is not an element necessary to be considered an artifact , legal documents are nonetheless in tangible form.

The Code of Hammurabi, the Laguna Copperplate27 and the Ten Commandments are all essentially documents of law.  Applying both tests to them, we will see that they are artifacts and that they are primarily legal documents.

The test that it is a legal document passes since the Code of Hammurabi is a writing containing letters, words or figures used in the practice of law. It is written. Its existence indicates that it was made within the context of the practice of law, being a law in itself, listing prohibitions and punishments. It falls within our definition of “any activity, in or out of court, which requires the application of law, legal procedure, knowledge, training and experience.”28

On the other hand, the Laguna Copperplate, even by contemporary definition, is undeniably a legal document:  it is a material containing letters or symbols depicting principles of law. In fact, if we use the principles embedded in the Laguna Copperplate to current Philippine law, we will find the Laguna Copperplate similar to many legal concepts written today.

First, the document is the ancient counterpart of several procedures in modern-day Philippine Law practice. It provides for either a pardon (under criminal law) or a condonation or remission of an obligation (under civil law). Second, it connotes an obligation to pay. Third, it implies an obligation to perform, the source of which is unclear. Fourth, it implies a penalty for nonperformance of the obligation. It likewise talks of enforcement of a penalty. In addition, it also suggests the use of a written document as evidence, the Laguna Copperplate itself.

These legal concepts, albeit slightly different, are present in the New Civil Code of the Philipines, which traces its roots from the Spanish Codigo Civil.  The concepts of condonation, remission or cancellation of debt is found in Article 1231, which states that: “Obligations are extinguished: (1) By payment or performance; (2) By the loss of the thing due; (3) By the condonation or remission of the debt; (4) By the confusion or merger of the rights of creditor and debtor; (5) By compensation; (6) By novation.”

Despite this, many think of the Code of Hammurabi and the Laguna Copperplate as mere simple artifacts. Indeed, they are artifacts created consciously, with skill, and verifiable in material form.  But more than that, we should see them as legal documents.

4. Why Legal Documents are Very Good Means to Construct the Past

Having established that legal documents are actually artifacts, we now establish that they are actually powerful tools in constructing portions of the past.

First, they are made based on predetermined standard rules to reflect a structure or fact.  Second, the actual products were meant to be preserved.  If one seeks to construct structures, conflicts and agents, legal documents provide a strong basis. 

A. Scrutinized based on determined rules

“Legal documents” were designed for close scrutiny. Documents used in litigation, are always subject to another set of eyes that are supposed to verify the facts and the basis of what they state.29 The Philippine Rules of Court as well as the US Federal Rules of Procedure all require that most legal documents be served to the other party. It is simply part of due process.

The creation of laws likewise involves a tedious and strict process meant to ensure their integrity, accuracy and preservation. As to the creation of laws, under Philippine law, they are read three times.30 They are debated upon with experts verifying their contents and another set of judges saying if they are valid when questioned31. These proceedings must be properly recorded.32 Section 14, for example of the 1987 Philippine Constitution provides that: “No decision shall be rendered by any court without expressing therein clearly and distinctly the facts and the law on which it is based.”

As documents, even as artifacts, they provide a strong source of vetted and argued information.

B. Strong Chain of Custody for Preservation

Legal documents are meant to be preserved.   It can safely be argued that the benefactor of the Laguna Copperplate would make sure it is kept. The story of Exodus shows the importance of preserving legal documents. When the document containing the “Ten Commandments” was destroyed, Moses had to “get” a new one.33

As to present legal documents, chain of custody should always be maintained and publication is required.34  Public records are meant to be kept.35 Falsification of public document is punishable by law and so is failure to store them properly.36

Only a few artifacts go through a similar process of preservation.

Private documents used for legal purposes are equally investigated to ensure proper preservation. An example of this is Section 20, Rule 132 of the Philippine Rules of Court, which requires that “before any private document offered as authentic is received in evidence, its due execution and authenticity must be proved (a) By anyone who saw the document executed or written; or (b) By evidence of the genuineness of the signature or handwriting of the maker.”

Not all artifacts however, go through the same tedious process of verification and standardization.  Because of this, an examination of the context under which legal documents were made should also be looked at.

5.  The Limitation of Legal Documents as Storytellers

And yet its perceived strengths are also its weaknesses. To say that legal documents paint a complete picture of the past is utterly wrong.  Because of the structure that legal documents should follow and the tedious process concomitant to its creation, they do not accurately reflect the personal stand and point of view of the creator. They also do not reflect other representations of the past, such as: individual culture, defiance of the minority, individualism, or stories of unknown agents.

Thus, a lawyer arguing against the death penalty as shown in court records might not necessarily be against it. Yet the legal document will reflect his opinion as such. The creator’s emotional style of writing legal documents is likewise limited by the rules set forth by the Court.  With stare decisis 37as prevailing doctrine in the Philippine legal system, the arguments or supposed beliefs of the lawyer as embodied in the legal document are merely mimicked from other men. In its liberal sense, it can be argued that it is not his creation, but merely a copy or collage of previous other decisions discussing the same subject matter.

Likewise, legal documents give the impression that they were created as true reflections of the past. That is not always true. Even its creation can be biased, as shown by Justice JBL Reyes in relating the state of the judiciary during Martial Law and the palpable absence of independent judges and prevalence of forced testimonies:

Martial law brought with it the suspension of the writ of habeas corpus, and judges lost independence and security of tenure, except members of the Supreme Court. They were required to submit letters of resignation and were dismissed upon the acceptance thereof. Torture to extort confessions were practiced as declared by international bodies like Amnesty International and the International Commission of Jurists.38 (Emphasis supplied)

With this therefore, legal documents while arguably factual and independent may not always be so.  There are also a lot of exceptions.

6. Using Legal Documents to Tell the Philippine Story

And yet for their limitations, legal documents as artifacts provide a good basis for a reconstruction of the past. For example, as we study the structure of Philippine society, specifically, the creation of a just and humane society, we find strong evidence in the legal documents preserved.

The Laguna Copperplate can be extrapolated to reflect the legal structures during the days it was made. Why did they have to embed the declaration on a copperplate? Is there a court that accepts this as evidence? The contract presupposes rules. It also assumes jurisdiction and other important details of law.

In the 1950 case of Hacienda Luisita v. National Labor Union,39 and in the 2010 case of Hacienda Luisita v. Presidential Agrarian Reform Council,40 the never-ending stories of Filipino farmers in Tarlac are chronicled. In 1945, the case of Yamashita41 tells the story of a Japanese General pleading before the Supreme Court to grant permission for release from the American Military Commission. A study of the records of the Constitutional Commission reveals the sufferings of the Filipinos during the Marcos dictatorship and the need for stronger laws to protect them:

Because of the wide-scale violation of human rights during the 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.42

In Aquino, Jr. v. Military Commission No. 2,43we see the pain of an agent of history, Ninoy Aquino. There, both sides tell the story on how he was tagged as a communist and judged to die. The story of his death and the alleged injustice is told in the case of Galman vs. Manuel.44 In his Separate Opinion in the case of Republic v. Sandiganbayan,45 Justice Reynato S. Puno talks about the history of the Filipino struggle for a humane society.46 In the recent case of Cadapan v. Gloria Macapagal Arroyo,47we see the clamor for humanity when mothers of disappeared University of the Philippines students asked the government to release their daughters.

Someday, those legal documents will be the Code of Hammurabi, the Laguna Copperplate or even the Ten Commandments. When pieced together, they tell good stories.

Conclusion

As many good artifacts, they are not perfect. But legal documents are good stories indeed – they are our stories. Generations of law students, law practitioners and erudite judicial luminaries have painstakingly crafted and collected bits and pieces of our social history. Let us not take these artifacts for granted and start digging them in the libraries.


  • * Cite as Al A. Parreno, Constructing the Past: Legal Documents as Historical Artifacts, 86 Phil. L. J. (page start), (page cited) (2012)
  • ** BS Business Administration, 1996; LLB, UP Law, 2003; Partner, Diaz Parreño Caringal Law Firm.
  1. Risto Hilpinen, Artifact, The Stanford Encyclopedia of Philosophy (Edward Zalta ed., Winter 2011) available at http://plato.stanford.edu/archives/win2011/entries/artifact/ (Date last visited: Mar. 12, 2012)
  2. Id.
  3. S. Marc Cohen, Introduction to Aristotle, in Readings in Ancient Greek Philosophy 645-54 (S. Marc Cohen et al. eds., 2005) available at http://faculty.washington.edu/smcohen/433/arintro.htm (Date last visited: Mar. 12, 2012)
  4. Id.
  5. Hilpinen, supra note 1.
  6. Pres. Decree No. 374  (1974).
  7. See http://www.etymonline.com/index.php?search=product&searchmode=none&p=0&allowed_in_frame=0 for the etymology of the word “product.”
  8. See United Nations Product Classifications available at unstats.un.org (Date last visited: Mar. 12, 2012).
  9. Stephen Thornton, Karl Popper, The Stanford Encyclopedia of Philosophy(Edward Zalta ed., Summer 2009) available at http://plato.stanford.edu/archives/sum2009/entries/popper/ (Date last visited: Mar. 12, 2012)
  10. Rep. Act No. 10066, § 3 (2009).
  11. Joanne Baldine, Is Human Identity an Artifact? How Some Misconceptions of the Asian and Western Self Fare during Technological and Legal Development,  3 Society for Philosophy and Technology (1997) available at http://scholar.lib.vt.edu/ejournals/SPT/v3n2/BALDINE.html (Date last visited: Mar. 12, 2012).
  12. The Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) is an international agreement administered by the World Trade Organization (WTO). It sets down minimum standards for many forms of intellectual property regulation.
  13. Intellectual Prop. Code of the Philippines, § 175 (1997).
  14. Rep. Act No. 10066, § 3 (2009).
  15. See Rules of Court, rule 132, § 21 (providing that an “ancient document” refers to a private document which is more than thirty (30) years old, produced from a custody in which it would naturally be found if genuine, and is unblemished by alterations or circumstances of suspicion).
  16. Rep. Act No. 10066, § 5 (2009).
  17. Michael Buckland, What Is a ‘‘Document’’?,Journal of the American Society for Information Science (Sep. 1997), available at  http://polaris.gseis.ucla.edu/gleazer/260_readings/Buckland.pdf (Date last visited: Mar. 12, 2012).
  18. UDC Consortium, About Universal Decimal Classification, available at http://www.udcc.org/about.htm (Date last visited: Mar. 12, 2012).
  19. Buckland, supra note 17.
  20. Rep. Act No. 8792 (2000). This is the E-Commerce Act. Under §  5(e) of this law, “electronic document” is defined as one that refers to information or the representation of information, data, figures, symbols or other modes of written expression, described or however represented, by which a right is established or an obligation extinguished, or by which a fact may be prove and affirmed, which is receive, recorded, transmitted, stored, processed, retrieved or produced electronically.
  21. Rules on Electronic Evidence, Rule 2, § 1(which expanded the definition of documents to include those derived electronically).
  22. See “Law”, Online Etymology Dictionary available at http://www.etymonline.com/index.php?allowed_in_frame=0&search=law&searchmode=none (Date last visited: Mar. 12, 2012). ; Legal, Merriam-Webster’s Online Dictionary <http://www.etymonline.com/index.php?search=law&searchmode=none.> 10 October 2011
  23. Black’s Law Dictionary (3rd  ed. YEAR!) quoted in Cayetano v. Monsod, G.R. No. 100113, Sep. 3, 1991 (hereinafter “Cayetano”).
  24. Land Title Abstract and Trust Co. v. Dworken, 129 Ohio St. 23, 193 N.E. 650 quoted in Cayetano.
  25. Cayetano (which included numerous definitions therein, among which are: “To engage in the practice of law is to perform those acts which are characteristics of the profession. Generally, to practice law is to give notice or render any kind of service, which device or service requires the use in any degree of legal knowledge or skill”).
  26. Rules of Court, Rule 128, § 2 in relation to Rep. Act No. 8792 (2000) and Cayetano, supra note 26.
  27. It is reported to be an old written document found in the Philippines, whose origin is approximately in 900 A.D.
  28. See Cayetano, supra note 25.
  29. E.g., the opposing counsel, the judge and the clerks and eventually, the justices who review the decisions on appeal.
  30. Const. art. VI, §  26.
  31. Const. art. VIII, § 4.
  32. See Const. art. VI, §  16(4) (which states that “Each House shall keep a Journal of its proceedings, and from time to time publish the same, excepting such parts as may, in its judgment, affect national security; and the yeas and nays on any question shall, at the request of one-fifth of the Members present, be entered in the Journal.  Each House shall also keep a Record of its proceedings”).
  33. Exodus 32: 19 ( King James Version, )
  34. Exec. Order No. 200, § 1 (1987) (which states that “Laws shall take effect after fifteen days following the completion of their publication either in the Official Gazette or in a newspaper of general circulation in the Philippines, unless it is otherwise provided”).
  35. Rep. Act No. 9470, § 2 (2007) (which states that “Towards this end, all public records with enduring value, held by government offices, including, but not limited to, all branches of government, constitutional offices, local government units (LGUs), government-owned and controlled corporations (GOCCs), state universities and colleges, Philippine embassies, consulates and other Philippine offices abroad shall be transferred to a permanent government repository for proper management, control and regulation of record disposition”).
  36. Rev. Penal Code, art.171, 226.
  37. De Castro v. Judicial and Bar Council, G.R. No. 191002, Apr. 20, 2010 (which defined stare decisis in this wise: Stare decisis derives its name from the Latin maxim stare decisis et non quietamovere, i.e., to adhere to precedent and not to unsettle things that are settled. It simply means that a principle underlying the decision in one case is deemed of imperative authority, controlling the decisions of like cases in the same court and in lower courts within the same jurisdiction, unless and until the decision in question is reversed or overruled by a court of competent authority”).
  38. Jose B.L. Reyes, Present State of Human Rights in the Philippines, in lawasia Human Rights Standing Committee,  Recent Trends in Human Rights47-52 (1982).
  39. G.R. No. 13072, Mar. 30, 1960.
  40. G.R. No. 171101,  Jul. 5, 2011.
  41. Yamashita v. Styer, G.R. No. 129, Dec. 19, 1945.
  42. 1 Record of the Constitutional Commission 674 (1986).
  43. G.R. No. 37364, May 9, 1975.
  44. G.R. No. 71208-09, Aug. 30, 1985.
  45. Republic v. Sandiganbayan, G.R. No. 104768, Jul. 21, 2003 (Puno, J., concurring).
  46. “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, these rights cannot forever be quelled, for like 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.” See Republic v. Sandiganbayan, G.R. No. 104768, Jul. 21, 2003 (Puno, J., concurring).
  47. G.R. No. 187109, May 31, 2011.

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