Chapter 4: Uncivil Law as a Tool of Spanish Imperialism

Agabin

Law as a Command of the Sovereign to a Subordinate

- By the 16th century, the dominant legal thought in the West was that law is a way a ruler can
oblige his subordinates to act in accordance with instructions or decrees
- This system was founded on principles of natural law, tracing its roots to the laws of nature and
the divine law
- Subordinates have no choice but to obey or rebel due to the punishment that comes when they do
not follow laws
- Spanish imperialism was able to use this legal system (Code Napoleon -> Spanish Civil Code) by
the Christianization of the Filipinos
- “God is the law. Therefore, law is dear to Him.”
- General structure of our Civil Code is based on the Code Napoleon, whose inner morality is
based on the tenets of the Christian religion

Influence of Christianity
- Visigoths ran Spain in the 5th century, from 456 A.D. until the coming of the Moors (Muslims) in
711; Spain was just then a part of loose kingdoms founded by Visigothic invaders of the old
Roman Empire
- Spain grew between the 5th and 8th centuries with a “love-hate” relationship with Rome and thus
eventually borrowing a number of Roman institutions including its laws
- Visigoth rulers later converted to orthodox Christianity and bishops and priests became the chief
powers of the state; clergy promulgated a system of laws in Spain considered to be (1) the most
competent and (2) least tolerant of barbarian codes
- While the code established the principle of equality before the law, it rejected worship for non-
Christians and imposed Christianity, even persecuting the Jews
- Christian principles affected practical problems of personal relations, society and government but
most especially, marriage
- A lot of struggle between civilian law of the Romans and ecclesiastical doctrines, but canon law
prevailed

Gothic compilations
- Visigoths brought the system of community property in marriage and of advancement to heirs
- Early in the 5th century, the Alaric (the leader of the Goths) invaded Italy and Spain.
- Led to the promulgation of the Code of Alaric in 506 which introduced the tribal customs of the
barbarians (Germanic custom law) to Roman law.
- Fuero Juzgo → 3 categories of law - Roman law, Germanic custom law and canons of
ecclesiastical councils -- found to be very advanced for its time and it was given
precedence over latter codes.

Fuero Juzgo (as enumerated by Prof. Balane)

A. The law of persons and family

1. Allowing intermarriages between Goths and Hispano-Romans
2. 2 kinds of person recognized - natural and juridical
 3. A natural person will be considered legally born if he lived for at least 10 days and has
been baptized
4. Age of majority = 15 years
5. Different impediments to marriage
6. No minimum age for marriage, can marry as long as you have reached the age of puberty
7. Prescribed wedding ceremony
8. Concept of conjugal property as recognizing the common property of the spouses;
whatever is earned by the effort of both and dividing such property in proportion to the
contribution of each one
9. Patria potestas (Roman concept of legitimation) → rights of infants and unborn
were protected; infanticide and abortion punishable by death
10. Mother exercising substitute parental authority in event that the father dies; this however
is extinguished when she remarries
11. Adventitious property is recognized

B. The Law of Property

1. Modes of acquiring property were occupation, accession, prescription, and succession.
2. Co-ownership was recognized and regulated
3. Servitudes were classified into personal and real (those who work in pasture lands)

C. The Law of Descent

1. Succession as either testamentary or interstate -- former is by virtue of an attested or holographic
will (only allowed in rare situations)
2. Minimum age for making wills was 14 and 10 for those who are in danger of death
3. Reserved portion was large → ⅘ of dad’s property and ¾ of mother’s property go
straight to direct heirs with a portion allowed as mejora (for third parties) and preferential
order of heirs
4. Disinheritance was limited
5. Order of interstate succession was established
6. Beginnings of the reserva which developed into reserva troncal

D. The Law of Obligations and Contracts

1. Contractual capacity = 14 yrs old
2. Minority, insanity, slavery and force or fear nulled a contract
3. Sale, lease, mutuum, commodatum, deposit, mortgage and pledge contracts were regulated

- In 711, the Moors came and occupied Spain for over 600 years. Their arrival retarded Spanish law
but it did not wipe out the gains from the previous years
- Visgothic-Roman law continued to apply to the Spaniards. Various cities were given their own
codes during the Reconquista. There were separate law codes for each state and for each class
within that state.
- Muslim Spain became part of the Islamic world; cities were bound by the elements of a common
culture -- adhesion to the Koran, etc.
- In the 15th century, after the Reconquista, Fernando III and Alfonso X completed a new system
of Spanish law called Siete Partidas → a compilation of law and a treatise of
 jurisprudence based on the law of the Visigoths but patterned after Justinian’s
Institutes.
- The Siete Partidas was also advanced for its age and it was ignored for 70 years until 1338 when
it became the law of the Castille and the law of all of Spain by 1492.
- They felt the need for a common law since they felt that the Visigoth laws were not enough to
preserve peace

Siete Partidas
- 1st part: Natural law, Catholic Church and religious laws
- 2nd part: Administrative law
- 3rd part: Court organization and procedures; land ownership, possession and servitudes
- 4th part: Persons and family relations
- 5th part: Obligations and contracts (most important)
- 6th part: Succession and heirship
- 7th part: Penal Code

Prominent features of the third, fourth, fifth, and sixth Partidas:

A. General provisions:
1. Principle of territoriality is preserved
2. Ignorance of the law is admitted as an excuse for peasants, soldiers, women
B. The law of persons and family:
1. Minimum age for marriage is puberty
2. Legitimation occurs: (1) subsequent marriage (2) will of the King (3)
performance of service to the King
3. Adoption (porfijamiento) is completely Roman derivation, as to kind, as to
requisites, and as to effects
4. Mother given no share in patria potestas (power of the father over children)
C. The law of property:
1. Ownership acquired by occupation, accession, prescription, tradition, and
hereditary succession
2. Roman law rules on possession and servitude - classified into real and personal -
are reproduced
D. The law of descent:
1. Necessity of instituting an heir, legal impossibility of dying partly testate and
party intestate (borrowed from Roman law of succession)
2. Capacity to inherit from ascendants is denied sacrilegious, adulterous, and
incestuous children
3. Legitimary system: from ⅘ of Fuero Juzgo, the legitimes of descendants were
reduced to either ½ or ⅓
4. Mejoras are not provided for
5. Legitimes are granted to ascendants
6. Substitutions classified into: vulgar, pupilar, ejemplar, and fideicomisaria
7. Representation is made to operate ad infinitum in the direct descending line, and
to the second degree in the collateral
8. Succession in collateral line is allowed to 4th degree; in default of relatives
within these degrees, the surviving spouse; and his or her default, the King.
 E. The law of obligations and contracts:
1. Partidas changed the already simplified law on contract from merely requiring
consent to an emphasis in form
2. Contracts either real or consensual - among the former are: mutuum,
commodatum, deposit, and pledge; among the latter: sale, lease, partnership, and
agency

Philosophy of Law (Medieval Period)

- Feudal community was rigidly organized in a close hierarchy, with medieval society divided into
various classes and orders; three basic orders divided acc to function:
- Religious
- Military
- Workers
- Hierarchical system revolved around the relationship between lord and vassal; a pattern of trust
and responsibility between the lord and his vassals
- Society composed of families whose members served their functions for their masters; the ties
that brought them together were personal and emotional bonds of friendship and intimacy,
covered by a web of mutual rights and obligations
- Vassalage: emotional bond between lord and servant
- Fathers of the Church considered slavery a way for slaves to practice patience and obedience to
masters and for masters to practice kindess towards their slaves
- Philosophy of law: philosophy of compromise
- Rise of Christianity brought law closer to theology (law founded on the will and wisdom of God),
arose a legal relationship between church and state (church asserting itself above state)

Philosophy of Law (Late Medieval Period)

- 9th to 15th century
- Rise of ecclesiastical law during the heyday of Holy Roman Empire
- Western Europe: uniting force during Middle Ages was Papacy
- Power of papacy maintained by canon law
- Pope legislated on matters not only spiritual but temporal
- As Pope consolidated his power during 11-12th centuries, his office evolved the ius commune
which was accepted as common law in Europe
- Canon law stood side by side with civil law and local laws → intertwined to
become law of the land
- At this stage during late Middle Ages, Pope Boniface VIII could claim that the emperor of the
Holy Roman empire was just a feudal lord under the Pope
- Pope not only supreme legislator (heresy to question his authority) but also supreme judge,
with appellate and original jurisdiction
- Not just pronouncements but even dicta he expressed had the force and effect of law
- Period saw a slight shift in philosophical thought with the partial return of classic philosophy in
scholasticism
- Aristotle seen in different light → his teachings were studied from prism of
religious dogma
- Scholars in Spain and Italy translated classical literature from Arabic to Latin → sparked
renaissance of learning in the west
- St. Augustine and St. Thomas: led the task of reconciling Aristotleian logic with Christian
doctrine
- Result: philosophy that developed religious dogmas with a rational analysis within the
framework of the Catholic faith
- Legal philosophy of Middle Ages culminated in Summa Theologiae of St. Tomas Aquinas
- Distinguished 3 orders of laws:
- Lex aeterna: divine reason, which governs the world
- Lex naturalis: natural law, which men know through reason
- Lex humana: positive law, which is man-made application of the natural law to
particular situations
- Used average nature of man as the limitation of legal restraint
- Aquinian definitions of justice is borrowed from Roman law, which is either
- Justitia generalis: all earthly virtues
- Justitia particularis, divided into
- Justitia commutativa: obligation of restitution to prevent unjust
enrichment
- Justitia distributiva: distributive justice, application of the proceeds of
justice in geometrical proportions
- Theory of punishment is also discussed in Summa, and usury is denounced
- Priests who revived Roman private law in Italy and carried to Spain, France, and Germany were
in favor of its practical application
- In Spain where influence of scholastic philosophy continued long after the medieval
period
- One of the few countries of Western Europe uninfluenced by Renaissance, as the
term is understood as a general detachment from the religious dogmatism
- Spain’s version of Renaissance was a renaissance of scholasticism
- Legal philosophers (like Francisco de Victoria) who were Dominicans and
elaborated on Thomistic doctrines, especially natural law
- Others were Jesuits (like Luis de Molina) who elaborated and developed
principles of scholasticism
- Only 19th century that Spain felt influence of other currents of thought
- Revision of laws in Spain at that time (14th century) reflected the strong influence of medieval
philosophy
- Field of contracts: Ordenamiento de Alcala emphasized the spiritual aspect of contracts,
ignoring the element of form stressed in the Partidas
- 1502: Spanish Cortes promulgated Leyes de Toro → has 83 laws to supplement existing
laws (salient civil law features of this law listed down below) *check reading to see full laws,
below are just key terms*
- A. Law of Persons and Family (key terms below, see full
- (1) juridical capacity is possessed by the naturalmente nacido
- (2) Marriage was recognized as cause of emancipation from parental authority
- (3) ley de osculo - if the marriage didn’t materialize, the woman had the right to
retain ½ of whatever the man had given her, if he had already kissed her
- (4-6) relations between husband and wife
 - (7) natural children defined as those born of parents who, at the time of child’s
conception or birth, could have married lawfully and without dispensation
- B. Law of Property
- C. Law of Descent
- (1-2) wills
- (3-4) ascendants, descendants, brothers or sisters
- (5) illegitimate children
- D. Law of Obligations and Contracts
- 1567: compilation of all laws published since Fuero Real and the Partidas was published by
order of Philip II called Nueva Recopilacion
- 1805: another compilation called Novisima Recopilacion was published, supplementary code
which failed to abrogate earlier laws
- 1789: Bonaparte came to power in France and promulgated Code Napoleon in 1805
- Considered the outstanding achievement of French revolution
- Deviates from philosophy of Corpus Juris Civilis in that it enunciates in general terms
modern principles like freedom of contract, civil marriage and divorce, equality of men
- Consists of 5 codes: civil, criminal, commercial, civil procedure, criminal procedure
- Civil code became the model for legal reform in European countries, including
Spain
- 1889: Civil Code of Spain was promulgated, consisting of 4 books like our 1950 Civil Code
- Civil Code extended to the Phil

Innovations in the Present Civil Code

- 53% of our 1950 Civil Code provisions were textually lifted from Spanish Civil Code of 1889
- Main philosophical strand of our civil law is the Romano-Germanic element, to which were
added concepts and principles of equity in England and torts in America
- Innovations of 1950 Code Commission reflect the strains of jus civile and scholastic philosophy
- Enacted the morals of Catholic religion into law, and perpetuated institutions of
Catholicism
- Overriding philosophy of our code is of natural law
- Framers of Code looked at law as a collection of rules derived into a system, and
classified it according to subject matter:
- Code Commission report excerpt that re-declares the principle of natural law:
“[...]while codes of law and statutes have changed from age to age, the
conscience of [people] has remained fixed to its ancient moorings[…]”
- Positive law is an adaptation of natural law, or “legal rules that embody eternal truths.” St.
Thomas Aquinas states that positive law should be
- founded upon justice
- in harmony with morality
- concordant with the natural order
- adapted to what is feasible
- considerate of local customs and traditions
- Thus, the moral orientation of the Civil Code (examples: Arts. 21, 22, 1423,
1424, 1428, and 1429)
- However, the Civil Code also embodies the individualism we “inherited” from American
common-law, in these provisions:
- Those on independent civil actions
 - Those on actions for damages on Bill of Rights violations and privacy violations
- Reasoning by Code Commission Chair Jorge Bocobo (who turned into a building
when he died) is that “democracy draws its breath of life from the spirit of
rugged individualism, and should not derive its effectiveness from the action of
public officials.”
- Our Civil Code is a mishmash of eras (just like Filipino society). The Middle Ages manifests
itself in “the medieval outlook on marriage as a contract between families, instead of one between
individuals”
- Family Code:
- Parental consent required for couples 18-21
- Parental advice for couples 21-25
- Couples 18-25: Prerequisite for marriage license is certificate from priest,
minister, or accredited marriage counselor that they have undergone marriage
counseling.
- Individual consent in marriage subordinate to family values
- Marriage “primarily to assure the wealth and continuity of families.”
- Concerns whole community and families involved
- So, no divorce. Thanks, Catholic Church.
- Marriage in the medieval mode is not “the fruit of love and courtship between
two individuals, but as a strategy for a family to obtain military, financial or
property alliance with another family.”
- Participation of priests in marriage rituals is an 11th-century throwback
- Gregorian Reformists saw such supervision as “an opportunity to increase its
power over the feudal lords.”
- End of 1100s: “Church developed a comprehensive canon law of marriage,”
which we adopted in secular law.
- Annulment based on psychological incapacity traces back to canon
law provision. Thanks, Church!
- Other obsolete provisions that we retain courtesy of Spain and the
Church:
- Prohibition of absolute divorce
- Invalidity of agreements for personal separation of husband and
wife
- Invalidity of agreements for dissolution of the conjugal
partnership of gains or absolute community of property
- Family Code: baby steps in marital relations, emancipation of married
women, and property relations between husband and wife
- Property law and succession: Present Code “is cast in the mold of feudalism.”
- Basic tenets of property law:
- Sovereignty of the property owner
- Property rights of the family
- Succession “centered on conservation of property in the family”
- Code amply protects share of forced heirs
- Provisions on property ownership “go against the grain of the stewardship of
property principle in the Constitution.”
- Almost no mention of social functions of property, “except for provisions
on easements and servitudes.”
 - “Provisions on ownership all point to possessive individualism.”
- Can be traced to Roman feudal law, brought to us by Spain.
- Transferability of property and property rights also well-recognized in Civil Code
- Transfers through gifts, bequests, succession protected for owner and
family
- Contracts and obligations also grounded on natural law philosophy.
- “agreements legally formed take the place of the law.”
- Creation of more wealth and property (coinciding with Industrial Revolution)
that people “became more interested in freedom to contract rather than about
enforcement of promises.”
- Anglo-American individualism: Freedom became defined by jurists as a
civil or political idea[...] in which men’s duties and liabilities” were
based on “willed action” as opposed to “the accident of social position
recognized by law.”
- This American philosophy was combined with the Spanish Civil Code to
form New Civil Code provisions on contracts and obligations.
- “The obligatory force of a contract rested on ‘a moral idea, the respect for the
given word, and economic interest, the necessity of credit.’”