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INTRODUCTION
(Reference: COMMENTARIES AND JURISPRUDENCE ON THE CIVIL CODE OF THE
PHILIPPINES by Dr. Arturo M. Tolentino, Ph.B., D.C.L., pp. 1-10)
A. Concepts of Law. – The term law may be understood in two concepts: (1)
general or abstract sense, and (2) specific or material sense. First sense equivalent to
Spanish term derecho; in the second, to Spanish term ley.
Same; General Sense. – In the general or abstract sense, law has been defined as
“the science of moral rules, founded on the rational nature of man, which govern his
free activity, for the realization of the individual and social ends, of a nature both
demandable and reciprocal.” (1 Sanchez Roman 3)
Briefly, it is the mass of obligatory rules established for the purpose of governing the
relations of persons in society. (1 Salvat 1-3)
Same; Specific Sense. – In a specific or material sense, law has been defined as a
“juridical proposition or an aggregate of juridical propositions, promulgated and
published by the competent organs of the State in accordance with the Constitution.”
(1-I Ennecerus, Kipp & Wolf 136) It is a norm of human conduct in social life,
established by a sovereign organization and imposed for the compulsory observance
of all. (1 Ruggiero 5-6).
Sanchez Roman defines it as “a rule of conduct, just, obligatory, promulgated by the
competent authority for the common good of a people or nation, which constitutes an
obligatory rule of conduct for all its members.”
D. Law and Morals. – Not all human conduct is regulated by law. There are other
forms of regulation, such as morals and religion. Only the rules of law, however, have
a legal sanction and can be enforced by public authority.
Law and morals have a common ethical basis and spring from the same source – the
social conscience. In fact, there was a time in the remote past, when the mind of man
was still in its childish state, confused, unable to analyze and abstract, when spiritual
and moral concepts were indistinguishable from the juristic and legal. It was useless
then to search for the traces of law as distinct from morals. This confusion continued
even into the classical age, as may be seen from the writings of Plato and Aristotle. In
Greece, there was no word to signify law, because it was included in the universal
concept of justice . Among the Romans, the term jus is derived from from justice, and
it has been defined as the art of being good and fair.
Since they spring from a common source, law and morals have many identical
precepts. But the Romans began to distinguish between law and morals, and the
distinction has remained to the present day. The law in many cases takes into
account moral concepts; however, not all moral duties have been converted into
juridical obligations, because if this were to happen, morals would lose their essential
characteristic of being voluntary.
The field of morals is more extensive than that of law. Law covers only social
activities, or the relations of man to his fellow-man; but the field of morals includes,
not only the duties of man to his fellow-being, but also those to himself and to his
God. Even among our duties to our fellow-men, many are still dictated by morals,
such as those which have a psychological basis, including the duties of assistance
and self-sacrifice.
The purpose of law and morals is basically the same: happiness, which cannot exist
for man, except through a permanent and stable equilibrium between human
personalities. But because of the distinction between them, an act may be entirely in
conformity with law but contrary to morals; and vice versa, conduct may be
justifiable from the point of view of morals but contrary to law. Law and morals
according to Colin and Capitant are like two concentric circles; it is, however, perhaps
more accurate to say that they are like two intersecting circles, with many principles
in a common zone, and yet with some principles of one at variance with those of the
other.
E. General Divisions of Law. – Law in its most comprehensive sense has been
divided into two general groups: divine law and human law. By divine law is meant
that in which God himself is the legislator who has promulgated the law; by human
law is meant that which is promulgated by man to regulate human relations.
Human law is in turn divided into two main classes: general or public law and
individual or private law. These in turn are subdivided as follows:
I. General or public law:
(a) International law, or that which governs the relations between nations or states,
that is, between human beings in their collective concept.
(b) Constitutional law, or that which governs the relations between human beings as
citizens of a state and the governing power.
(c) Administrative law, or that which governs the relations between officials and
employees of the government.
(d) Criminal law, or that which guaranties the coercive power of the law so that it will
be obeyed.
(e) Religious law, or that which regulates the practice of religion.
II. Individual or private law:
(a) Civil law, or that which regulates the relations of individuals for purely private
ends.
(b) Mercantile law, or that which regulates the special relations produced by
commercial transactions.
(c) Procedural law, or that which provides for the means by which private rights may
be enforced.
F. Kinds of Specific Law. – Law, in the specific sense, is generally classified into
mandatory, prohibitory, and permissive. In one sense, every law commands, because
it is obligatory; but it commands in three different ways: (1) it commands that
something be done, in which case it is mandatory; (2) it commands that something
should not be done, in which case it is prohibitory; and (3) it commands that what it
permits to be done should be tolerated or respected, in which case it is permissive. (3
Fabres 90)
This classification has been criticized by some, including Savigny, as unscientific. It is
said that the more important classification is that of absolute and suppletory. The first
has an obligatory character; while the second leaves the will of the individual free to
act, and only when this has not manifested itself does the law present the rule to
determine the juridical fact. (1 Borja 4)
G. Codification of Laws. – As laws multiply, the need for compilation arises. After
compilation, however, a higher need is felt, that of codification. This is the systematic
organization of the law into one or more codes. A code is a collection of laws of the
same kind; a body of legal provisions referring to a particular branch of the law.
A lucid description of codification was made by David Dudley Field in the following
words: “To reduce the bulk, clear out the refuse, condense and arrange the residium,
so that the people and the lawyer, and the judge as well, may know what to practise
and obey – this is codification, nothing more and nothing less.
Same; Reasons. – There are various reasons which lead to codification, among them
being: (1) the necessity of simplifying and arranging the many juridical rules
scattered in several laws and customs; (2) the necessity of unifying various
legislations in the same country; and (3) the necessity of introducing reforms
occasioned by social changes. (1 Ruggiero 102)
I. Codification in Spain. – The move to make the laws in Spain uniform was started
by Alfonso X, known as the Wise, by the promulgation in 1255 of the Fuero Real,
which can properly be called a code. The second step was made by Alfonso XI, when
through the Ordenamiento de Alcala of 1384, he promulgated the code known as Las
Siete Partidas. This was followed by such other collections or compilations as the
Leyes de Toro, La Nueva Recopilacion, La Recopilacion de las Leyes de India, La
Novisima Recopilacion, this last one having been promulgated by Carlos IV on July 15,
1805.
All these codes or compilations, however, were of a general character embracing all
the divisions of law. The first step towards the codification of the different branches of
law was made in the Constitution of 1812, which provided that “a single Civil Code
shall govern in all the dominions of the Spanish monarchy.” A Projecto de Codigo Civil
was completed in 1851, but it was never approved and promulgated. On May 11,
1888, the Ley de Bases was promulgated, to serve as the legal basis for a new Civil
Code, which after some corrections, took effect in Spain in its final form on July 24,
1889.
K. Definition of Civil Law. – Under the Roman law, the term civil law was used in
four different concepts. In the first sense, it was equivalent to the national law, or the
law applicable to the individuals of each particular city exclusively. In the second
sense, it was used to distinguish that body of law composed of plebiscites, imperial
constitutions and others from the jus honorarium or pretorium. In the third sense, it
was understood to mean the law applicable to the citizens of Rome, as distinguished
from that applicable to foreigners or the jus gentium. In the last sense, it was
sometimes used to designate the opinions of authorized jurisconsults. (1 Sanchez
Roman 64-65)
In its present concept, however, civil law is that branch of law which has for its
double purposes the organization of the family and the regulation of property. (1
Falcon 34; 1 Sanchez Roman 70) It has thus been defined as “the mass of precepts
which determine and regulate the relations of assistance, authority and obedience
among the members of a family, and those which exist among members of a society
for the protection of private interests.” (Julian Arribas, cited in 1 Sanchez Roman 70)
M. Influences on Spanish Civil Law. – The civil law of Spain was influenced by
several factors. They are: the Roman law, the Germanic law, the canon law, scientific
evolutionary thought, foreign legislation, and the doctrines contained in
jurisprudence.
Spain was once a part of the great Roman Empire, and it was natural that the Roman
law should be introduced in Spain. Upon the fall of the Roman Empire, Spain was
overrun by the Goths, who established their capital in Barcelona in the year 416, with
Ataulfo on the throne. During the period of Gothic supremacy in Spain, a caste
system developed. The Roman law was continued for the conquered people, and
collected in the Code of Alaric or Breviario de Aniano. A different set of laws, of
Germanic or Gothic character, was made applicable to the rulers, compiled in the
Code of Euric or of Tolosa. The canonical influence in Spanish civil law was due to the
spread of Christianity and the constant intervention of the clergy in legislation. (1
Sanchez Roman 72-76, 145)