LEGAL HISTORY
the establishment of bonus paterfamilias as the
THE PHILOSOPHY OF THE CIVIL CODE by Pacifico Agabin
I. Roman elements of the Civil Code
A. Introduction
We can point at the philosophy of law by:
1. tracing the origin of the law to its sources in human nature
2. connecting the law with the society that evolved it and the circumstances of
the time in which it orignated
3. relating the importance of the law under the influence of economic, social
and other conditions
4. pointing out the basic elements of the law
5. tracing the growth of the law and/or
6. distinguishing law from ethics
enumerated above are according to Sir John Macdonnell the task of an investigator
of philosophy
B. Roman Law Antecedents
•to study the history of the Civil Code is to go the history of Spain because our
laws are founded on the laws of Spain
•Laws of spain based on the Roman law but to study Roman law we’ll find out
that it is greatly influenced by the Greek philosophy
•Roman state was composed of hardy tillers of soil. These were peasants and
they fashioned their laws according to theri lifestyle
•The laws did not have any explicit philosophy but it has religious foundations.
•Roman law was but a combination of tribal customs, royal edicts and priestly
commands.
•Roman law was lex and jus-command and justice-man and gods
•Theory of injury and liability-injuring one’s neighbor might make the gods angry
and might hit them back and could cause peril to the community
•Roman law grounded on religion. When law is based mainly on religious rituals,
the philosophy of law stagnates.
•We can only know the philosophy of law when it becomes distinguishable from
religion, morals, and customs.
•Between salvation and damnation, the Roman tribesmen did not question the
rules
•Schulz Jurists give the impression of a mathematical treatise of rather of a
treatise on a law of Nature, however not so generally applicaply as was claimed for
the Stoic law of Naure, but one within the framework of Roman legislation and
retaining certain traditional principles and axioms..in short a Roman law of Nature.
•Pound Roman law-philosophically discovered system of precepts-express
nature of things which men ought to conform his conduct
•Philosphy of law was not a strong point with the romans. Roman model for the
philosophy maybe represented by:
a.
standard relation for development of private law during
the fist period
b. jus aequum-corresponds to the principle of equity,
dring the second period
Distinguishing marks of the Roman law
•One distinguishing mark of the Roman law during this period lies in the
ABSENCE OF AN ETHICAL ELEMENT. Here was lawa before it was married to
ethics.
•Paterfamilias (represented absolutism) -absolute monarch in the family over
which he had complete control
•SIMPLICITY  In private law, the Romans recognized only 2 forms of human
associations a. Societas b. Corporation
•There was only one type of communio, one form of property as no distinction
was made between real and personal property, one form of security whether
possessory or not.
•In family law- property law of husband and wife are of two kinds: a. Manus
marriage- where the wife had no property b. Free marriage- Separation of property
•Pound when the law replaced religion as the main regulating agency, the old
religiously-sanctioned promise became a formal legal contract which created a legal
duty enforced by the government.
•Legal symbols replaced the symbols of magic, contracts became source of
obligation
•Pound it is the legal form that formed the causa for enforcing the agreement
in contracts.
•One comon thread of Roman private law, it is the philosophy f individualism.
•Example: marriage and divorce were accomplished without the govt
intervention, no question of the right of the wife to contract, duty of husband to
support wife, no community of property, each remained sole owner of their property.
•ROMAN LAWS OF OWNERSHIP WERE EXTREMELY INDIVIDUALISTIC
(SAME WITH SUCCESSION AND OBLIGATION)
•Two principles of Roman law operated to moderate the excessive
individualism:
a. Aequitas practical concession as the directive principle of a progressive legal
development which finds itself in opposition to the strcit civil law (departure from the
rigidity of the roman law) and
b. Humanitas- contemplated moral, intellectual, education, kindness, goodness,
sympathy, and consideration for others; it also softened the relationship between
parent and child
•Humanitas of Marriage:
1. Evolved the form of marriage a. Free b. Manus
2. husbands usucapio was abolished (these rules applied to chattels and not to
human beings)
3. relationship bet. Parent and child softened
•Corpus juris civilis-Code of Justinian enacted orhtodox Christianity into law
 •After declarin the Trinity of God and ordering all Christians to submit to the
religious leadership of the Roman Church, the Code embodies the DOCTRINE OF
THE CHURCH:
1. legalization of slavery and serfdom
2. the oppression and persecution of heretics and dissenters
3. the preservation of the distinction between classes
4. capital punishment for sexual irregularitites like homosexuality, fornication,
adultery, and rape
5. the prohibition against divorce
6. inheritance of property through the cognate line in descending order
7. inalienability of the property of the Church
8. attachment of freemen and serfs to the feudal estate
9. imprisonment for debt
•Code of Justinian differes from earlier codes by its rigid orthodox, its deeper
conservatism, and its vengeful severity
II. Spanish Precedents
A. Introduction
•5th century- visigoths over-ran Spain and they ruled the country until the
coming of the moors
•Visigoths later changed their faith and were converted to orthodox Christianity
•While the code imposed the rules of evidence and established the principle of
equality before the law, applying the law to Romans and Visigoths alike,
a. it rejected freedom of worship for non-Christian
b. imposed Christianity on all inhabitants
c. sanctioned persection of Jews
B. Gothic compilation
•two tribal custms brought by the Visigoths to Spain
a. system of community property in marriage
b. advancement to heirs
•Early of the 5th century, ALARIC, Goth leader invaded Italy and the heart of the
western empire including Spain. This led to the promulgation of the CODE OF
ALARIC which introduced the tribal customs of the barbarians to Roman law.
•This opened the way in Spain for the introduction to germanic custom law so
that when the FIRST GREAT CODE OF SPAIN, FUERO JUZGO was enacted it
contained 3 categories of law. A. Roman law b. Various german customs c. Canon
of ecclesiastical councils
•Features of the Fuero Juzgo found in Balane readings
•In 711 the Moors invaded and occupied most of Spain and lasted twice as long
as the Spain rule over the Phil. This retarded the development of Spanish law but it
did not wipe out the gains in previous eras.
•This was because the conquered Spaniards were governed, in their internal
affairs, by their own laws and by their own officials.
•Visigoth-Roman law continued to apply to the Spaniards.
•RECONQUISTA- period where various cities were given or assumed their own
codes
•Fuero Juzgo was given to the city of Cordova in 1241.
•After the reconquista, Fernando III began and Alfonso X completed a new
system of Spanish law called SIETE PARTIDAS which is based on law of Spanish
Visigoths but patterned after Justinian Institutes.
•It was ignored for 70 years and in 1338 became law of Castille and in 1492 by
all Spain. At this time Spain felt the need for a common law.
•Siete Partida
1. natural law, usages, customs of Catholic church and religional laws
2. administrative law
3. court organization and procedure
4. family matters and personal relations
5. obligations and contracts
6. succession, intestacy, heirship and guardianship
7. penal code
•See Balane for the features of the Siete Partidas
C. Philosophy of Law (Medieval Period)
•It was a Philosophy of Compromise (according to Berolzheimer)
•To understand the philosophy of the medieval law we have to udnerstand the
communal nature of medieval society.
•Medieval society was divided into 3 basic orders: a. Religious b. Military c.
Workers
•Hierarchical system revolved around the relationship between lord and vassal.
•Vassalage was not a legalistic concept that would approximate a social
compact; it was more of an emotional bond between lord and servant
•But the rise of Christianity did have an effect on the Philosophy of law during
this period
1. it drew the law closer to theology in the sense that since a personal God
governs the world, law is therefore founded on the will and wisdom of God
2. there arose a legal relationship between the church and state, church above
the state
•This was presented clearly in the works of St. Augustine, De Civitate Dei. His
contribution was the concept of pax as the regulating principle which is not peace but
that which brings peace.
D. Philosophy of Law (Late Medieval Law)
•There was a slight shift with the partial return of classic philosophical thought
with the partial return of classic philosophy in SCHOLASTICISM.
•Aristotle’s teachings were studied from a prism of religious dogma and as a
result it develped religious dogmas with rational analysis within the framework of the
Catholic faith.
•Legal philosophy culminated in the SUMMA THEOLOGIAE of St. Thomas.
•He distinguished 3 orders of laws:
1. lex aeterna- divine reason which governs the world
2. lex naturalis-natural law which men know through reason
3. lex humana-positive law which is man-made application of the natural law to
particular situations
 •Romans used bonus paterfamilias as norm of their system, St. Thomas Aquinas
used the average nature of man as the limitation of legal restraint. He established a
penal principle and determined by its application.
•Aquinian definition of JUSTICE:
a. justitia generalis-comprising all earthy virtues
b. justitia particularis
b.1 justitia commutativa-obligation of restitution to prevent unjust enrichment
b.2 justitia distribution-distributive justice which is the application of the proceeds
of justice of geometrical proportions
•Spain continued the scholastic philosophy even after the medieval period. In
fact, it was the only country which was not influenced by the renaissance as the term
is understood to mean a general detachment from the religious dogmatism of the
Middle Ages.
•Revision of laws in Spain (14th century) reflected strong influence of medieval
philosophy.
•ORDENAMIENTO DE ALACALA emphasized the spiritual aspect of contracts
and practically ignoring the element of form stressed in the Partidas.
•Lesion in sales was introducedinadequacy amounting to more than one-half
the price. The taking of interest was also prohibited.
•1502, the Spanish Cortes promulgated the Leyes de Toro. (Check Balane for
the law features)
•1567-Nueva Recopilacion published by Philip II
•1799-Napoleon Bonaparte came to power in france and promulgated Code of
Napoleon in 1805.
•1899-Civil Code of Spain became the model in a number of European countries
(4 books)
III. Philosophy of Innovations in the Present Civil Code
•53% (57 in balane) of our present CC were textually lifted from the Spanish
Civil Code of 1889.
•The main philosophical strand of our civil law is the Romano-germanic element
to which were added the concepts and prinicples of equity in England and of torts in
America.
•Strains between jus civile and the scholastic philosophy reflected in the Code
Commssion.
•Our CC enacted the morals of the Catholic religion into law and perpetuated the
institutions of Catholicism.
•Overriding philo of our CC is that of NATURAL LAW.
•Report of the Code Commission: in the last analysis, every good law draws its
breath of life from morals, from those principles which are written with wirds of fire in
the conscience of man. Xxx the conscience of man has remained fixed to its ancient
moorings
•The precepts of law are: live honestly, hurt no one, give everyone his due
•THE PHILOSOPHY OF INDIVIDUALISM THAT CHARACTERIZES THE
INNOVATIONS ON OUR CIVIL CODE IS NOT THAT OF THE OLD ROMAN LAW; IT
IS THE INDIVIDUALISM OF AMERICAN COMMON LAW.
•These are the provisions on: 1. independent civil actions, similar to the
American law on torts 2. actions for damages for violation of the rights enumerated in
the bill of rights or for violation of privacy
•Dean Bocobo underscored the need for individualism in the Filipino character
•Philosophy of the Anglo-American torts is that private wrongs should be
redressed in a private civil action. When this principle shall have seeped into the
general consciousness of our people, there will arise and develop a spirit of individual
independence on which, when all is said and done, popular government rests.
•Family Code adopted the medieval attitude on marriage as a contract between
families, instead of one between individuals.
•In the medieval period, marriage was looked upon, not as the fruit of love and
courtship between two individuals, but as a strategy for a family to obrain military,
financial or property alliance with another family.
•It was in this sense that marriage was anti-individualistic in philosophy, and it
became a social institution at the level of the extended family system and feudal
bond.
•12th century-Canon law of marriage was developed by the Church
•In property law and Succession economic individualism. The sovereignty of
the property owner and the property rights of the family are still the basic tenets of
our law on property.
•It hardly mentions the social functions or property, expect for provision on
easement and servitudes. Its provisions on ownership all point to possessive
individualism.
•In contracts and obligations, Pound mentioned that before it was the
enforcement of the promises that was morally binding but later in the 19th century,
with the creation of more wealth and property, men became more interested in
freedom to contract than about enforcement of promises.
•The important institution was a right of free exchange and free contract,
deduced from the law of equal freedom as a sort of freedom of economic motion and
locomotion.
•Jurists saw freedom as a civil or political idea realizing itself in a progress from
status to contract in which men’s duties and liabilities came more and more to flow
from willed action instead of from the accident of social position recognized by law.
•Drafters of our CC borrowed from the Spanish Civil Code of 1889 the Roman
and the scholastic philo of the law of contracts, bonded it with the Anglo-American
elements of individualism, and produced a hybrid which is recognizable in natural
law. (Our CC is a hybrid!)
•Individual is the high point in the philosophy of law.
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