UNCIVIL LAW AS A TOOL OF SPANISH IMPERIALISM

Chapter Four from

The Story of the Philippine Legal System
by Pacifico A. Agabin

Law as a Command of the Sovereign to a Subordinate

- The civilian legal system, founded on the principles of natural law, was a perfect tool for Spanish imperialism.
- 16th century Western world’s dominant legal thought:
➢ Law = an order by which a ruler obliges his subordinates to adjust their actions accordingly / a decree by
which a superior obliges a subordinate to act in accordance with his instructions.
▪ Subordinates have no choice but to obey or rebel under pain of punishment.
- Since it was founded on principles of natural law, which traces its roots to the laws of nature and divine law, even
man-made law is viewed as an order of a superior to a subordinate.
➢ Part of the “will of God”
- Christianization of Filipinos made it easy for Spanish colonizers to impose the Code Napoleon (template of Spanish
Civil Code) on our Hispanized people. When invoked as the ultimate source of law, it was readily accepted or even
revered.
➢ “God is the law. Therefore, law is dear to Him.”
- Code Napoleon’s inner morality is based on the tenets of Christian religion.
➢ Evident from the moralistic provisions of our Civil Code whose general structure was based on Code
Napoleon.

Influence of Christianity
- Visigoths (early Germanic people) 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 from the 5th up to the 8th centuries with a “love-hate” relationship with Rome and eventually borrowed
several 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
the barbarian codes.
- The code established the principle of equality before the law, but it rejected worship for non-Christians imposing
Christianity to all, even persecuting the Jews.
- Christian principles affected practical problems of personal relations, society, and government but most especially,
marriage.
- There were struggles between Roman civilian law and ecclesiastical doctrines, but canon law almost always
prevailed.

Gothic compilations
- Visigoths brought to Spain 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 (first great code of Spain) → 3 categories of law = (1) Roman law; (2) Germanic custom law; and (3) canons
of ecclesiastical councils — found to be very advanced for its time and was given precedence over latter codes.

Fuero Juzgo’s salient features (as enumerated by Prof. Balane)

(*see full detailed list on pages 97-101 of the reading material*)
A. The law of persons and family
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 1. Allowing intermarriages between Goths and Hispano-Romans
2. Two kinds of person recognized – (1) natural and (2) 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 a valid marriage:
a. Difference in status
b. If the woman is older than the man
c. Holy orders, from subdeacon up
d. Relationship – to the seventh degree
e. Prior existing marriage
f. Crimes against chastity, esp. abduction and rape
g. Temporal impediment
6. No minimum age for marriage; one can be married as long as the age of puberty is reached.
7. Prescribed wedding ceremony = ritualistic where elements involved are symbolisms
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 (acquired solely by marriage) = not as absolute or fearsome as in Roman law
➢ Rights of infants, even unborn, were protected: infanticide and abortion were punished by death or
gouging out of one’s eyes; a mother who procures abortion gets reduced to slavery
10. Mother exercised substitute parental authority if the father dies → 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 years old
2. Minority, insanity, slavery and force or fear vitiated 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.
- 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.

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 - The Siete Partidas was also considered 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 thinking 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 civil law features of the third, fourth, fifth, and sixth Partidas:
(*see full detailed list on pages 104-106 of the reading material*)
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 according to function:
1. Religious
2. Military
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 3. 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 kindness 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 spiritual matters as well as 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 = supreme legislator (heresy to question his authority) + 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 Aristotelian 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:
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
- 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
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 - In Spain, the influence of scholastic philosophy continued long after the medieval period
- Spain = one of the few countries of Western Europe uninfluenced by Renaissance
➢ Spain’s version of Renaissance was a renaissance of scholasticism
- Legal philosophers (like Francisco de Victoria) who were Dominicans elaborated on Thomistic doctrines,
especially natural law
- Others who were Jesuits (like Luis de Molina) elaborated and developed principles of scholasticism
- Only in 19th century: Spain felt influence of other schools of thought
- Revision of laws in Spain at that time (14 th 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

Leyes de Toro’s salient features (*see full detailed list on pages 112-114 of the reading material*)
A. Law of Persons and Family
(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 did not 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
− A provision governs interruption of prescriptive periods.
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 and extended to the Philippines by royal decree
➢ Consisted of 4 books like our 1950 Civil Code:
▪ Book I: Persons
▪ Book II: Property, Ownership, and its Modifications
▪ Book III: Different Modes of Acquiring Ownership
▪ Book IV: Obligations and Contracts

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 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.”
- According to St. Thomas Aquinas, positive law should be:
1. founded upon justice
2. in harmony with morality
3. concordant with the natural order
4. adapted to what is feasible
5. considerate of local customs and traditions
- Hence, 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 borrowed from American common law in these
provisions:
1. Those on independent civil actions
2. Those on actions for damages on Bill of Rights violations and privacy violations
❖ Reasoning by Code Commission Chair Jorge Bocobo 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 present Civil Code, even the Family Code when it amended the former, is a product of a mixture of different
periods and influential systems of thought manifested in the following:
➢ 5th century (Middle ages)
▪ Medieval outlook on marriage as a contract between families, instead of one between individuals
❖ Explains why under FC, parental consent is required for couples between 18-21 y.o. and parental advice
for 21-25 y.o.
▪ Marriage as primarily intended for the assurance of wealth and continuity of family; considered, not as a
fruit of love and courtship, but as a strategy to obtain military, financial, or property alliance with another
family.
❖ While marriage is now defined as a “special contract” under FC, it is still considered as “an inviolable social
institution whose nature, consequences, and incidents are governed by law and not subject to stipulation.”
▪ Medieval custom making the wife or lady of the manor in charge of all ‘feminine’ matters in the household
❖ Explains the Civil Code provision that the wife shall manage the household (repealed by FC: household
management is now a duty of both spouses)
➢ From 6th century (Justinian)
▪ Christian theory of marriage under Justinian requiring a formal negotiated property settlement between two
families as the minimum requirement for marriage
❖ Explains why under our current laws, marriage is considered as a family affair
➢ From 11th century
▪ Gregorian Reformists realized that clerical supervision of marriage was an opportunity for the Church to
increase its power over feudal lords.
❖ Explains why the Church gained jurisdiction over issues pertaining to marriage and divorce
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➢ From 12th century
▪ Church developed a comprehensive canon law of marriage.
❖ This became our secular theory of marriage.
❖ Requirements for the validity of marriage, which we imported from Spain, were actually copied by Spain
from this canon law of marriage.
❖ Prohibition of absolute divorce, which we still currently have, is dictated by this, along with the rules on
the invalidity of agreements for personal separation of husband and wife, or for dissolution of the
conjugal partnership of gains or absolute community property, or for annulment of marriage.
▪ One of the provisions of said canon law is about the annulment of marriage based on psychological
incapacity
❖ This became Article 36 of the Family Code.

➢ Roman feudal law

▪ Sovereignty of the property owner (the lord of the manor) and the property rights of the family
❖ Still maintained as the basic tenets of our current laws on property
▪ The rights to possess, use, manage, and receive income; the powers to transfer, convey, exclude, and waive;
the privilege to consume, alienate, or destroy; and the liability for execution of a court judgment are
traditional incidents of property ownership under the Roman law
❖ Said concepts were handed down to us by Spain and are currently preserved by our present Civil Code.
➢ American Law
▪ American law provides principles for transfers of value which are manifested in our current laws.
❖ Transferability of property and property rights (gratuitous transfers, power of bequest, intestate succession) is
well-recognized in the Civil Code.
➢ Natural Law Philosophy of the West
▪ With the creation of more wealth later in the 19 th century, man became more interested in freedom to contract
than about enforcement of promises.
▪ The important institution was a right of free exchange and free contract.
▪ Men’s duties and liabilities became viewed to come from willed action instead of from an accident of social
position.
❖ Drafters of our Civil Code borrowed from the Spanish Civil Code of 1889 the Roman feudal law and the
scholastic philosophy of the law of contracts, bonded it with Anglo-American elements of individualism,
and produced a hybrid which is recognizable in natural law.
➢ Romanized will theory of contract
▪ Based on the premise that agreements legally formed take the place of the law, and the obligatory force of a
contract rested on “a moral idea, the respect for the given word, and economic interest, the necessity of
credit”
❖ This gave birth to our theory of obligations.
❖ While equity principles have been included to our law on obligations and contracts, its basic core still
manifests the metaphysical theory of the 19th century that individual will is the high point in the
philosophy of law.

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