Rise of the Civil Law System

ROMAN ELEMENTS of the CIVILIAN SYSTEM:

Philippine Civil Code founded on laws of Spain, which were based on Roman law*(Roman law is the legal system of ancient Rome from the Twelve
Tables (c. 449 BC), to the Corpus Juris Civilis (AD 529) ordered by Eastern Roman Emperor Justinian I. Roman law forms the basic framework for Civil law)

Corpus Juris Civilis The Corpus Juris "Body of Civil Law" is the modern name for a collection of fundamental works in jurisprudence, issued from 529 to 534 by order of Justinian I, Eastern Roman Emperor.) is an
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accumulation of old Roman law, as modified by the tenets of orthodox Christianity

Early Roman law was greatly influenced by Greek Stoic Philosophy*(Stoicism is an ancient Greek philosophy 300BC which teaches the development of self-control and
fortitude as a means of overcoming destructive emotions.)

EARLY ROMAN LAW INTERTWINED WITH RELIGION

Ancient Roman State composed of peasants: laws according to simple lifestyle

Primitive government: elective king, council of nobles, general assembly of people

King: administered war and religion and proposed laws, which were then debated in Senate and ratified or rejected by a majority of
votes in the 30 parishes of the city

Civil law: balanced rights and fortunes of the seven classes of citizens and guarded the observance of contracts and punishment of
crime

as royal power decays, it gives way to dominion of aristrocracies(invested with judicial privileges, and formed the only expedience
by which accurate preservation of customs of the race or tribe could be approximated)

At this time, laws enacted by king became obsolete. Democractic state is gone. ---- lawless despotism(absolute power of
patriacians/nobleman)

Law: as both command and justice, relation not just between man and man but between man and god

Relation between man and god:

Crime: disturbance of the peace of the gods; law and punishment were designed to maintain or restore that piece

Theory of injury/liability: injuring ones neighbor may affront the gods and prompt them to retaliate on malefactor and imperil
the whole community, affecting innocent and guilty alike

Theory of contracts: invoked name of gods: a person was called to witness the promise, and politically organized society
had to give legal remedy to the promise or else invoke gods anger and jeopardize communitys security

Priests as autocracy, shaped laws to suit religious ends: law books were hidden from plebians and priests were suspected of
altering texts to suit their ecclesiastical needs

Ancient Roman law: intertwined with religion

Law based on religion stagnates; substance of law is clipsed by oaths and rituals; between salvation and damnation, ancient Roman
tribesmen had no leeway for independent thought; when law is interwoven with religion, morals and custom, it fails to develop; it is
only when law becomes distinguishable from religion that its philosophy, i.e., ethical basis for its norms, becomes discernible

Early Roman religion: was a public observance aimed at promoting social cohesion and loyalty to state by ceremonially reminding
everyone, in civic ceremonies of prayer and sacrifice to the god associated with public weal, of the overarching that bound them
together.

*movement from ancient roman to early roman: extricate from grip of religion, solution no longer explained by God alone

LAW AND SYMBOLS

Early forms of Roman Law began with use of signs and gestures to symbolize certain transactions:

Contracts: pantomime; gestures was requirement for validity; symbolic acts and solemn phrases took place of documentary
forms; lengthy and intricate ceremonial intended to call attention of parties to importance of transaction, and impress it on
the memory of the witnesses

Early contracts: communion of marriage (denoted by elements; divorced wife returns keys), manumission of a son or a
slave (turning him around with gentle blow on the cheek), pledge or deposit (clinched fist)

High degree ceremonies: purpose to impress upon memory of parties the business of the transaction

Analogy: present-day marriage contract, as a social institution, is attended by witnesses and follows religious
rituals

But this occult science of jurisprudence was inheritance of pontiffs and patricians but was soon obliterated

FAMILY AS BASIC UNIT

Central principle of rights were attainable only with respect to family, not individuals.

Family followed PATRIA POTESTAS or the authority of the highest living ascendant; obediene to father is natural, as he is
a source of superior strength and wisdom
 Adult son may enjoy rights of a person under roman law, but he is on the same category of possession and slaves in his
fathers house in that his father may alienate or destroy his rights

Power of father was confined to citizens and not given to foreigners

Women were disadvantage: they followed perpetual tutelage, that is, continuous subjection to male authority, even after
getting married: perpetual guardianship based on the assumption of the inferiority of the female sex

MARRIAGE AND DIVORCE:

Modes of marriage:

Religious (conferreation), civil marriage (coemption), usus (woman passed to husband as a daughter)

religious marriage: full of symbols; bride is bought from as young as twelve, and fulfills coemption by purchasing,
with three pieces of copper, an introduction to his house and household dieties

In marriage union, woman enters into new servitude under her husband, who exercises power of life and death
over her in case of adultery or drunkenness

Wife not a person, but chattel, and may be returned if deficient, within one year

Divorce for flimsy reasons is also permitted: passion, caprice, etc.

Incestuous marriages: condemened

Concubine: ranked above prostitute but below lawful wife; if a celibate man has a child by his concubine, the child
is natural and can be legitimated by celebration of nupitals, and such child would be capable of succeeding to a
sixth part of the fathers inheritance

Illegitimate children: entitled only to name and status of the mother

Guardianship:

Lasts until puberty for boys (fourteen), but women are under perpetual tutelage of fathers, husbands or guardians and
never attain age of experience and reason

A son is delivered from family bondage at death of the father

TESTATE AND INTESTATE SUCCESSION:

Fixation with the family led to the invention of the will: contract is greatest influence in transforming society, will is second.

WILL: viewed not as mode of distributing dead mans goods, but of transferring representation of household to new head

Testator conveyed to the heir his whole family, and the family survived with the heir as the new chief

At first, testaments were allowed to take effect only on the failure of the persons entitled to have inheritance by right of blood; edictal
law enumerated the order of intestate succession: direct descendants (who had not been emancipated), nearest agnate (closest
relative through a maleno inheritance was given to a relative through a female descent), and members of the house bearing the
same name who descended from the deceaseds family

Allowance of the will: testator pronounced testament in presence of five witnesses, with six witness attesting their concurrence, and
a seventh weighed copper money supposed to be paid by an imaginary purchaser

Evolved into a simpler testament: seals and signatures of seven witnesses

Led to supplement to a will (codicil) and invention of the fidei-commissa, or trust, for roman soldiers who may die in remote colonies

Concept of governing contracts also affected development of property laws:

Property divided into res manicipi (moveables) and res nec manicipi (immoveables)

Res manicipi: things easily known individually, of great value: land, slaves, work animals: commodities of prime
value to an agricultural society; mode of conveyance by which they were transferred was called manicipium

res nec manicipi: objects not requiring full ceremony of manicipi, where ordinary formalities(actual delivery,
tradition) would suffice;

** when conquest and discovery of man over material nature led to expansion of nec manicipi, romans realized
the advantages of simple formality and legal fiction and equity gradually operated to push manicipi to background
in favor of tradition

EVOLUTION OF CONTRACT:

Concept of Manicipi, designating transaction of property transference, severed CONTRACTS from CONVEYANCE;

Led to a classification of contracts as verbal, literal, real and consensual; named after certain formalities:

VERBAL: form of words; later reduced to stipulation, or question and answer

LITERAL: called for entry into a ledger clothed the pact with obligation

REAL: involved delivery of the thing subject of engagement

 CONSENSUAL: specified agency, partnership, sale, letting and hiring

In the march of ideas, landmarks of jurisprudence are as follows:

Contract and conveyance are blended, in which formalities accompanying agreement are more important than the
agreement itself stipulation: which simplified old ceremonial literal contract: formalities waived if proof of agreement
can be supplied from observances of a Roman household real contract: recognition of moral duty consensual
contract: mental attitude of contracting parties are solely considered

CONCEPT OF OBLIGATION:

Law of Obligation, or of the Contract and Delict: had most extensive influence on foreign law

Obligation: bond or chain with which law joins together persons or groups in consequence of certain voluntary acts; acts giving rise
to obligations are clased as CONTRACTS or DELICTS

VINCULUM JURIS/Legal Chain: metaphor used by Romans, binding parties together, and can be broken only by XOLUTIO or
payment

Obligation implies rights as well as duties: right to have a debt paid and duty to pay it

Two kinds of obligations:

NATURAL: an intellectually mature person deliberately binds himself by an obligation, even if some formality was
omitted and even if through some technical impediment he had no formal capacity for making the contract valid

though a contract MUST be the foundation of an action, a mere pact or convention could be the basis of an
action

CIVIL: when the praetors promulgated an edict that equitable actions upon mere pacts provided only that such
pacts were founded on a consideration (causa): a consequence of the principle behind consensual contracts

ACQUISTION OF PROPERTY:

Original right to property was justified by discovery, capture, or prior occupancy or possession.

Modes of acquiring Property:

Manicipium: delivery of thing in presence of witnesses and public official

In Jure Cessio: solemn delivery before the praetor

Adjudicatio: parition made by judge

Lex: determined by the twelve tables

Usucapio: by prescription

Early Romands Divison of property into movables and immovables.

Two essential aspects of property:

The OBJECT

The WEB of SOCIAL RELATIONS which establishes a limiting and defined relationship between persons and objects

**limitation and definition of relationships between persons and things distinguished Romans legal genius from ancients;
they recognized that a persons control over property is relative, and this could be limited by law, custom, and other forms
of restraint by society

no one should make evil use of his own property

Even though the individual may create or acquire the object of property through his own efforts, it is society and not the
individual which creates the circumstances that make property out of it

illustrated in ancient Rome by limitation on landholding: an old statute limited landhold of richest citizen to three hundred
acres of land, while poorest were guaranteed a lot

CRIME AND PUNISHMENT:

Penal Law in Ancient Communities: not a law of crime but a law of wrongs (torts)

Person injured proceeds against wrongdoer by ordinary civil action, and recovers compensation in the form of damages if
he succeeds: torts of theft, robbery, trespass, libel and slander, all give rise to obligation to pay money

Early Religious Code: defined certain acts and ommissions as crimes, being violations of divine command: adultery, sacrilege,
murder

Penal laws as classified into those punishing sins, and those punishing offenses against ones neighbor (torts)
 Laws committed against the state had to be passed by lawmaking body ex post facto: involved such high issues that
instead of leaving its punishment to the civil or religious court, it took the form of a bill of pains and penalties, and the trial
was conducted independent of settled rules and procedures

Primitive history of criminal law begins with the understanding that concept of crime is different from that of torts, and from that of
sin

Includes: idea of injury to community, state, and which interposed itself directly and by isolated acts, to avenge the evil
suffered

Next step: legislature to delegate trial of crimes to particular commissions and to impose penalties

Next step: taken by legislature when it appoints regular commissioners to try particular classes of crimes in expectation that
these will be perpetrated

Last stage: commisioners are constituted into permanent chambers to try crimes

Lawmakers believed that the impulses of the victim were the proper measure o vengeance and tha the rise and fall of his passions
was the primary factor in fixing the amount of punishment.

Thus penalties would be graduated based on value of the thing and the status of the offender.

Criminal cases were delegated to standing commissions to try specific crimes (e.g. parricide, murder, violent injury)

One of the first permanent courts: questro perpetu: an anti-graft court, where members were selected from a class of
judges who were to officiate, and the offenses of which it took cognizance were expressly defined

PHILOSOPHY OF THE EARLY ROMAN LAW:

Early Roman jurisprudence was polished and improved by its alliance of Grencian philosophy, in particular, the theory of natural
law.

Natural law: law working within the framework of Roman Legislation that retains certain traditional principles and axioms of the law
of nature

Roman Law: conceived as a philosophically discovered system of principles which express the nature of things, to which, therefore,
man ought to conform his conduct

Law of nature:

That which nature has taught all living beings, that is to say, not only men

include that which nature has taught animas (union of male and female for procreation, rearing of children)

recognizes common ownership of natural resources

considers as proper modes of acquiring property the ff: capture of wild animals, discovery of precious stones, first
occupation, etc.

Some of the original ideas in law were borrowed from Greek Stoic philosophers:

Greek Stoics thought of laws of nature in an ethico-legal sense, and laid down rules of right conduct and statement of rights
which pertained to humanity and were superior to any positive or local law.

Las of nature include obligatons to abstain from wrongdoing, and instead observe obedience to superiors and honoring
parents, practicing charity and fidelity

Romans borrowed from greek stoics the concept of individual rights, its theory of penology, its rules of administration, and fidelity to
duty.

Bonus Pater Familias came from stoics reverence for ones parents and the obligation of feeding children

Classic enduring roman model for the philosophy of law represented by the establishment of the ff:

Bonus Pater Familias as standard relation for development of private law (first period)

Jus aequum: principle of equity (second period)

Theory of natural law as the stimulus to the progress of the Romans in the development of their legal system; since the
ideas of simplication and generalization had always been associated with nature, simplicity, symmetry and
intelligibilitycame therefore to be regarded as the characteristics of a good legal system

Distinguishing mark of Roman law: ABSENCE OF AN ETHICAL ELEMENT

Law: what is decided by people of Rome at the request of senatorial magistrates such as a consul

Law, before it was married to ethics

Ex. paterfamilias: represented absolutism of the early civilian law; paterfamilias as absolute monarch in the family

Other distinguishing marks of Roman Law: Simplicity: reflective of Greek stoic philosophy

Recognition of two forms of human association: society and corporation

One type of communio

One form of property (no distiction between real and personal property)
 One form of security, whether possessory or not

One type of contract for work and labor, hire and lase

Only two kinds of property law of spouses in family law: wife had no property (manus marriage) and separation of property
(free marriage)

Other legal rules borrowed from Roman law which have changed since their original philosophical underpinnings:

Law of contracts and bailments: in Ancient Roman Law, someone who broke his oath, aside from displeasing the gods,
was also a social danger; when law replaced religion as 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 symbols of
magic, and the conract became the source of the obligation

New contracts arose, as rationalizations of previous formal transactiosn:

Ex. Consensual contract of sale, rationalized transfer by tradition

** 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

roman concepts on contracts traced the source of the 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 incantaion, and that legal forms are
frequently symbols to be classed psychologically with the symbols of magic.

Common thread of Roman Private Law: philosophy of individualism, or freedom from state interference

Marriage and divorce were accomplished without government intervention: no restrictions placed on divorce

No community of property: each spouse remained soule owner of his or her property

Roman laws of ownership were individualistic: principle was that ownership is to be as realistic as possible and the greatest
possible latitude given to individual action and initiative

Testamentary disposition by individual will was the rule, and the statuory rules of succession ere of minor importance

Two principles in Roman Law that moderated excessive individualism and rigidity of the law:

Equity:

Departure from austere, rigid and unyielding nature of roman law

Afforded relief from rigor of ancient statutes, and a principle of discretion more congenial to monarchy was
introduced into the republic, subtleties and fictions were invented to defeat the plain meaning of the Twelve Tables

Humanitas

Contemplated not only moral and intellectual education, but also kindness, goodness, sympathy and consideration
for others

Free marriage evolved out of this concept, in which wie was no longer subjected to husbands power, which was
abolished; sale of wife considered a delict, community of property between spouses was recognized, and wife
could then succeed to the estate of husband

Softened relationship between parent and child; paterfamilias was deprived of the right to put a child to death

Roman juristic science reached its peak in the second and third centuries when the administration of justice was separated from
politics, before it became sterile, and thereafter, was caught in the grip of the new religion

History of Roman Law ended almost the same way it began: wrapped in religion and dogma

Ex. Corpus Juris Civilis or Code of Justinian, enacted orthodox Christianity into law, and proclaimed as law the basic tenets
of the Orthodox church

Code eventually came to embody doctrries of the Church even in the area o social relations: legalization of slavery,
preservation of distinction between classes, punishment for sexual irregularities like homosexuality, fornication, adultery
and rape, prohibition against divorce, inalienabiity of the property of the Church, etc.

Code of Justinian differs from earlier codes by its rigid orthodoxy, its deeper conservatism, its vengeful severity; Justinian
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 age.