The Philosophy of The Civil Code
The Philosophy of The Civil Code
The Philosophy of The Civil Code
cat in a dark room: at times you hear the cat meow, at times you feel its
fine fur, at times you see its gleaming eyes, but most of the time you don~
know where to look for it. The concept of philosophy of law is itself iII-
defined. It certainly is not jurisprudence, whether this be understood to
be sociological, psychological, historical, or any other form advocated
by any school. It is also not ethics, although this may be a part of the
law itself. Since words like "philosophy" or "law" are themselves
susceptible of varied interpretations, it is not surprising that
philosophy of law is hardly capable of an accurate definition.
2) connecting the law with the society that evolved it and the
circumstances of the time in which it originated; or
..
sponsored by the Institute of Government and Law Reform, (J.P. Law Center.
Dean, College of Law, University of the Philippines; LL.B. (1960), U.P.
College of Law; LL.M. (1963); l.S.D. (1965), Yale Law School.
The above tasks, according to Sir John Macdonnell, are the tasks
of an investigator of the philosophy of law. It is like shooting in the
dark, hoping that a wild shot may, by accident, hit the unseen and
elusive target.
But to start from the ancient Roman state, it has been noted that
this was initially composed of hardy tillers of the soil. These were
sturdy and hardworking peasants, and they fashioned their laws
according to their lifestyle. Their laws did not have any explicit
philosophy, except those with religious foundations. Thus, ancient
Roman law was but a combination of tribal customs, royal edicts, and
priestly commands. This was the time when the law could not be
distinguished from the Roman religion, as ancient Rome was under the
rule of priests. Thus, early Roman Law
was both lex and jus, command and justice; it was a relation not
only between man and man but between man and the gods. Crime
was a disturbance of that relation, of the pax deorum or peace of the
gods; law and punishment were in theory designed to maintain or
restore that relation and peace.l
The same observation holds true for the theory of injury and
liability. Ancient Roman thought proscribed injuring one's neighbor as
this might affront the gods and prompt them to hit back at the
malefactor and imperil the whole community, by indiscriminately
unleashing lightning or casting pestilence, which would affect the
guilty and innocent alike.2 Even the theory of contracts invoked the
name of the gods. In making a promise, a person was called to witness
the promise, and the politically organized society had to give a legal
remedy to the promise lest he invoke the aid of the gods and jeopardize
the security of the community.3
Since priests were the dominant class, they shaped the law to
suit their religious ends. They declared what was right and wrong;
decided questions of marriage or divorce, celibacy or incest, wills or
transfers, or rights of children and parents.4 The law was surrounded
with solemn oaths and sacred sanctions, and the law books were so
securely hidden from the plebeians that the priests were suspected of
altering the texts on occasion to suit their ecclesiastical objectives.s
2
PoUND, ANlNTRODUcnON TO mE PHILoSOPHY OF LAw 26 (1954).
3/d.
4
DURANT, supra note I, at 33.
SId.
6
SCHULZ, PRINCIPLES OF ROMAN LAW 4 (1936).
Often the jurists' statements almost give the impression of a
mathematical treatise or rather of a treatise on a law of Nature, a
law, however, not so generally applicable as was claimed for the
Stoical law of Nature, but one within the framework of Roman
Legislation and retaining certain traditional principles and axioms
... in short, a Roman law of Nature?
7
Id., at 35.
8
POlJND, supra note 2.
9
REROI.71tE1MER,TilE WORLD'S LEGAl. PIllLOSOPII1ES82-83 (R. Jastrow trans.
There are other legal rules borrowed from Roman Law which,
while still extant in our Civil Code today, have undergone some changes
in terms of their philosophical underpinnings. Take, for instance, the
law of contracts and of bailments. While in ancient Roman law contracts
and agreements were not initially cognizable by the tribunals, it was
soon realized that someone who broke his oath, aside from displeasing
the ~ods, was also a social danger. As observed by 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.ll The legal symbols replaced the
symbols of magic, and the contract became the source of the obligation.
To borrow from Pound again, new categories of contracts arose which
were, however, rationalizations of previous formal transactions, e.g.,
the consensual contract of sale rationalized transfer by tradition, the
real contract of depositum rationalized fiducia cum amico, and mutuum
rationalized pecunia credita.12 All of these contracts, even if derived
from formal transactions, were agreements clothed in legal form, and it
was this legal form that formed the causa for enforcing the agreement.
It was only much later, under the influence of the Germans during the
medieval period, that the concept of causa debendi, or reason for owing
the promised performance, evolved, probably due to pressure from the
church which was at that point establishing a jurisdiction over
promises. All of these Roman concepts on contracts originally traced the
source of obligation in the form itself, for it was earlier thought that
"faith in legal forms belongs to the same order of thought as faith in
forms of incantation, and that legal forms are frequently symbols to be
classed psychologically with the symbols of magic",13
11
POUND, supra note 2, at 138.
12
Id., at 140-141.
13
Id., at 139-140.
14
SCHULZ, supra note 6, at 147.
1SId.
latitude given to individual action and initiative.16 The same
observation holds true for the law of obligations, as well as the law of
succession.17 Testamentary disposition by individual will was the rule,
and the statutory rules of succession were of minor importance. 1here was
generous freedom of disposition accorded to the testator; it was only in 40
B.C. that the lex Falcidia secured to the heir 1/4 of the estate. 1B
16
Id., at 153.
17
Id., at 155-156.
18
Id., at 156-157.
19
BEROLZHElMER, supra note 9, at 85.
20
SCHUlZ, supra note 6, at 192.
21
Id., at 195-196.
22
Id., at 198.
23
Id., at 200.
ended in almost the same way that it began: entwined and warped in
religion and dogma. For example, we find that the Corpus juris civilis,
which we know as the Code of Justinian, enacted orthodox Christianity
into law, and proclaimed as law the basic tenets of the orthodox
church.24 Thus, after declaring the Trinity of God and ordering all
Christians to submit to 'the religious leadership of the Roman Church,
the Code embodies the doctrines of the church even in the area of social
relations: the legalization of slavery and serfdom, the oppression and
Persecution of heretics and dissenters, the preservation of the distinction
between classes, capital pUnishment for sexual irregularities like
homosexuality, fornication, adultery, and rape, the prohibition against
divorce, inheritance of property through the cognate line in descending
order, inalienability of the property of the Church, attachment of
freemen and serfs to the feudal estate, and imprisonment for debt.2S The
Code of Justinian, as Durant observes, "differs from earlier codes by its
rigid orthodoxy, its deeper conservatism, and its vengeful severity."26
Justinian, as Durant put it, could not escape his environment and his
time, for in his ambition to unify everything, he codified the
superstition and barbarity, as well as the justice and charity, of his
ageP
24
4 DuRANT, THE STORY OF CIvn1ZAnoN 112 (1950).
2S
/d., at 113.
26
/d., at 114.
'r1/d.
28
/d., at 95.
29/d.
attempt to apply universal Christian ethics to the practical problems of
personal relations, society and government.
(2) The minimum age for making wills was 14, and 10 for
those in periculo mortis.
This was because Spain had been stimulated by its victory over
the Moors, although it could not deny the partial absorption of modem
Prof. Balane lists down the prominent civil law features of the
third, fourth, fifth, and sixth Partidas as follows:
34Id.
35
Introduction. CIvIL CODE OF MEXICO.
4} The mother is given no share in the patria potestas;
rather (as in the Roman law) it is granted to the ascendant of the
highest degree.
36
Balane, supra note 31, at 25-26.
considered slavery a propitious occasion for the slaves to practice
patience and obedience toward their masters, and for the masters to
practice kindness toward their slaves.37 The philosophy of law during
this period, according to Berolzheimer, was a philosophy of
compromise.
37
DEL VECClDO, PHILosoPHY OF LAw 46 (1953).
38
ld., at 47.
39'
BEROUHEIMER., sIIpra note 9, at 96.
man as the limitation of legal restraint. He thus established a penal
principle, and determined its application.40 The Aquinian definition of
"justice" is borrowed from Roman law, which is either justitia generalis,
comprising all earthly virtues, or justitia particularis, likewise
divided into justitia commutativa or the obligation of restitution to
prevent unjust enrichment, or justitia distributiva or distributive justice,
which is the application of the proceeds of justice in geometrical
proportions.41 The theory of punishment is also discussed in the Summa,
and usury is denounced.
40
Id., at 99.
41
Id., at 100.
42
SCHULZ, supra note 6, at 37.
43
DEL VECClDO, supra note 37, at 215.
44
Id., at 215-216.
4S
Balane, supra note 31, at 28.
In 1502, the Spanish Cortes promulgated the Leyes de Toro,
consisting of 83 laws, to supplement existing laws. The salient civil law
features of this law are:
46
Id., at 31:~.
Civil Code of Spain was promulgated, consisting of four books like our
Civil Code: Book I is Persons; Book II is Property, Ownership, and its
Modifications; Book III is Different Modes of Acquiring Ownership;
and Book IV is Obligations and Contracts. In the same year, the Civil
Code was extended to the Philippines by royal decree.47
w. Philosophy of Innovations in
the Present Civil Code
Cast in the mold of the Code Napoleon, 53%of our present Civil
Code provisions were textually lifted from the Spanish Civil Code of
1889, the philosophical elements and antecedents of which had been
discussed above. The main philosophical strand of our civil law is the
Romano-Germanic element, to which were added the concepts and
principles of equity in England and of torts in America.
... in the last malysis, every good law draws its breath of life
from morals, from those principles which a'e written with words of
file in the conscience of man. If this premise is admitted, then the
proposed rule is a prudent eU'Dest of justice in the face of the
impossibility of enumerating, one by one. all the wrongs which
cause damage. When it is reflected that while codes of law and
statutes have changed from age to age, the conscience of man has
remained fixed to its ancient moorings, one cannot but feel that it
is safe and salulU'y to transmute. as fa' as may be, moral norms
into legal rules, thus imparting to every legal system that enduring
quality which ought to be one of its superlative attributes.48
47
RIvERA, THE FATHER OF nm FIRsT BROWN RACE CIVIL CODE 6-7 (1978).
4B
REPoRT OF nm CODE COMMISSION 40.
according to St. Thomas, must follow the dictates of natural law; it
should be founded upon justice, should be in harmony with morality;
concordant with the natural order; adapted to what is feasible; and
considerate of local customs and traditions.49
49
BEROUJIEIMER, supra note 9, at 98-99.
sOBocobo, in RIvERA,supra note 47, at 191.
Even the new Family Code in some parts is a throwback to the
Middle Ages. It adopted the medieval attitude on marriage as a
contract between families, instead of one between individuals. Thus,
under the Family Code, parental consent is required for couples between
the ages of 18 and below 21, and parental advice for those who are
between 21 and 25. The new Code likewise requires, as a prerequisite for
the issuance of a marriage license, a certificate from a priest, minister,
or an accredited marriage counsellor that a party who is at least 18 but
below 25 has undeFgone marriage counselling. These provisions are
reminiscent of the Christian theory of marriage under Justinian in the
6th century which reqUired a formal negotiated property settlement
between the two families as the minimum requisite for marriage.
Marriage was considered a family affair, and it still is.
54
POUND, supra note 2, at 143.
5S
Id., at 149-150.