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Bluebook 21st ed.

Aurelio C. Ramos, The Roman Law in the Philippines, 9 PHIL. L.J. 185 (1929).

ALWD 6th ed.

Ramos, A. C., The roman law in the philippines, 9(5) Phil. L.J. 185 (1929).

APA 7th ed.

Ramos, A. C. (1929). The roman law in the philippines. Philippine Law Journal, 9(5),
185-191.

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Aurelio C. Ramos, "The Roman Law in the Philippines," Philippine Law Journal 9, no. 5
(November 1929): 185-191

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no. 5, November 1929, p. 185-191. HeinOnline.

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Aurelio C Ramos, 'The Roman Law in the Philippines' (1929) 9 Phil LJ 185

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 The Roman Law in the Philippines
By AURELIO C. RAMOS1

Introductory-The Roman Law was based on the sound

and abstract principles of justice. As justice is the same in
every country and at all times so the Roman Law has invaded
the domains of all countries of the world and permeated in all
their laws. The power of the Roman Empire was greatly re-
sponsible for the spreading of the Roman principles of law in
the countries conquered. Manifestly the Roman Law has sur-
vived the test of time and the changes of legislations in all the
countries and it contributed to the formation and development
of modern private law in practically all the civilized countries
of the world. So the systems of laws of modern European
countries are described as the "Modern Roman or Civil Law,"
but this is not limited to continental Europe, because the so-
called common-law countries, such as Great Britain, the British
Empire, and the United States, have also adopted to a certain
degree, the principles of modern Roman Law. It can be seen
therefore that the influence of the Roman Law on Modern Civil
Law has been very great and has made itself felt in all modern
legislations.
In view of this reception of the Roman Law would it be a
surprise still to note that the Philippines was not able to escape
the invincible invasion of her legal institutions. Figuratively
speaking, there were no less than three fatal bullets which
struck the Philippines as the target. It is the purpose of this
treatise to review and comment on the different legal influences
which molded our present legislation and which in turn are
traceable directly or indirectly to the Roman Law as the source.
More concretely the three influences given in the chronological
order are: (a) the Mohammedan; (b) the Spanish; and (c) the
American. It will not be amiss perhaps if a brief statement
of the spread of each of the three above-mentioned influences
is given here. That each has been*derived from the Roman Law
will also be explained incidentally.
The Mohammedan Law.-The history of Roman Law since
Justinian is brought down to modern times thru two distinct
channels; via Eastern Europe and via Western Europe. The

I M. A., LL. B. (University of the Philippines).

 PHILIPPINE LAW JOURNAL

development of the law of modern Eastern European and other

countries affected by the Byzantine Empire has been caused
by the influence of Post-Justinian law, which passed into Abys-
sinia, the Mohammedan countries to certain parts of the Philip-
pines. That the Mohammedan Law is a substantial copy from
the Roman Law is clearly shown by the fact that the best part
of the Koran is but a republication of Justinian Roman Law.
This was however adapted for Moslems and clothed in an
Arabic dress. The Mohammedan jurists Ansay and Shafeir,
the latter one of the four founders of Islamic legislation, were
admittedly well acquainted with Greek-Roman Law as enforced
in Syria, as the Roman Law schools of Beirut and Alexandria
continued for over a century after the Mohammedan conquest
of Syria and Egypt. A strong corroborating statement to this
was made by the most brilliant English Romanist, Professor
Amos. His statement is as follows: "If the Mohammedan re-
ligion is nothing but Hebraism adapted to an Arabian soil, it
seems also true that Mohammedan law is nothing but the Roman
Law of the Eastern Empire adapted to the political conditions
of the Arab dominions." This explains the building of the
Mohammedan law which today governs millions of people scat-
tered in Turkey, Cyprus, Egypt, Ceylon, Algeria, Tripoli, and
India. From India, the Mohammedan laws were introduced
into prehistoric Philippines by way of Java, Sumatra, and Ma-
lay Peninsula. Thus Islam has been engrafted in some regions
of Mindanao and Sulu where the Luwaran Code has been in
force. The name given to this body of legal precepts indicated
that the provisions found therein were selected from their orig-
inal in the Arabic laws which were adopted, modified, enlarged
and in some cases, restrained to suit local conditions and the
manners of the people, and after undergoing such sifting were
finally incorporated in the Code of Luwaran, which is equivalent
to the Tagalog and Bisayan Huwaran (model). Huwaran means
"choice" or "selection" and when there can be no choice selec-
tion of the most suitable Arabic laws on particular questions,
the Moro judges or "Kalis" as they are called by Maranaos and
Maguindanaws, made their own laws to cover those special cases
without losing sight of the customs of their people. According
to Dr. Saleeby in his work entitled "A Study of the Moro His-
tory Law and Religion," Manila, Bureau of Printing, 1905, the
authority of the Luwaran is universally accepted in Mindanaw
and is held next to the Koran in sacredness.
 ROMAN LAW IN THE PHILIPPINES

The Spanish Law.-Roman Law as has been mentioned

already somewhere in this discussion did not perish with the
destruction of the Roman Empire. It has been exerting pro-
found influence on the formation of modern private law parti-
cularly in Europe, America, Asia and Africa. The development
of the law of modern Western European countries was operated
thru a channel which passed into all the states of Western
Europe and the twin Americans into those parts of Asia and
Africa including the Philippine Islands colonized or governed
by Europeans and into other countries like Japan even. Among
the Modern Western European countries, Spain was the first to
attain the national unity and the first great modern European
power. She was predominant in Europe in the 16th century.
The history of the evolution of the Spanish law into its present
condition of uniformity and codification has four well defined
periods: first, from the 6th century to the reign of Alfonso the
Wise in the middle of the 13th century; second, from the middle
of the 13th century to the end of the reign of Ferdinand and
Isabela early in the 16th century; third, from the 16th century
and the reign of Emperor Charles V to the codification of
Spanish law in the 19th century; and fourth, Modern Spanish
Law.
At the time of the conquest of the Philippines by Magellan,
the Leyes de Toro were in force in Spain. When Legaspi estab-
lished in these Islands the Spanish dominion (years 1565-1572),
the Nueva Recopilaci6n promulgated in 1567 was in force in
Spain. In said 16th century, efforts were made in Spain to
compile the Spanish Colonial laws during the reigns of Charles
V and his son Philip II. Finally in the next century in 1680,
Charles II promulgated the Recopilaci6n de las Leyes de Indias
which was made then the law in the Philippines, as well as in
the other Spanish colonies. The other Spanish laws in force
prior to the Recopilaci6n de las Leyes de Indias, such as the
Fnero Jvzgo, Fuero Real, Siete Partidas, Leyes de Toro, and
Nueva Recopilaci6n were considered as legal precedents and
suppletory laws. In 1805 Charles IV promulgated the Novi-
sinia Recopilaci6n which is a compilation of law from the 15th
century to the date of said new act. This law did not repeal
the Leyes de Indias contained in the Recopilaci6n de las Leyes
de Indias, but served as another legal precedent and sup-
pletory law. In April 8, 1873, the Spanish law of Waters of
year 1866, was extended to the Philippines (Cortes vs. Ciudad
de Manila, 10 J. F., 575, 576.) In December 17, 1886, the
 PHILIPPINE LAW JOURNAL

Spanish Penal Code was promulgated for the Philippines. In

August 6, 1888, the Code of Commerce was promulgated. In
December 1, 1889, the Mortgage Law was enforced in the
Philippines. In December 8, 1889, the Civil Code was extended
to the Philippines. These enactments have been made besides
some special laws promulgated from time to time, since the
16th century, like the institution of notaries public -which took
place in December 22, 1577, as seen in the Recopilacidn de Indias,
(Ley 36, tit. 80, Lib. 5) (Berriz, Diccionarios, tomo 9, p. 196)
and some laws about public lands.
The American Law.-We call American law not only those
acts promulgated by the United States Congress applicable to
the Philippines, but also all the laws and regulations promul-
gated first by the Military Government during the military
occupation, second by the Philippine Commission, under the
Act of Congress of July 1st, 1902; then by the said Philippine
Commission as Upper House and the Philippine Assembly, as
the Lower House; then, the Act of Congress of August 29, 1916
(Jones Act.)
That the American Law is primarily of the Anglo-Saxon
origin is beyond doubt; but just as certain as this is the fact
that the English law has not escaped the permeating influence
of the Roman Law. Let us review briefly the periods of En-
glish legal history in order to clarify this insinuation. There
are no less than five periods in the English legal history, to
wit: first, from the Anglo-Saxon conquest of Britain in the
5th century to the Norman conquest in the 11th century; second,
from the Norman conquest to the end of the reign of Edward I
in the 14th century; third, from such reign to the 17th century
and the reign of James I; fourth, from the 17th century to the
19th century Judicature Act of 1876; fifth, from 1878 up to the
present time.
The rule and enactments of the new customary law were
shaped by Norman lawyers familiar with Roman and Common
law. The very term common law is Jus Commune in latin and
jus commune is common law * * *. In the reign of Henry
II the royal courts began to issue writs which were ready made
to suit ordinary cases of litigation. The drafting of these ready
made writs of process must have been greatly facilitated by
Roman models * * * The common law was formed not
merely by the influence of legal treatises based on Roman law
such as Bracton's but more especially by judicial decisions from
the same jurisprudence.
 ROMAN LAW IN THE PHILIPPINES

The English adoption of Roman law was not an act of

legislation but a long process of custom. It was found neces-
sary to supply the defects of the common law which having
expended its best energies in developing the feudal system
showed no symptoms toward creating an original commercial
and movable property law. But the use and reception of the
Roman law were not always acknowledged by English courts and
subsequently this habit and practice gradually grew stronger
in proportion to the rise and increase of English prejudice
against whatever bore the name Roman. In 1785 Sir William
Jones said: "The few English lawyers dare to make such an
acknowledgment (the Roman Law) it is the source of nearly
all of our English laws not of feudal origin. It was only until
very modern times when at last the debt of English law to
Roman law began to be paid * * *. In the 16th century,
the study of the Roman Law revived in England and such second
revival was fathered and favored by Henry XIII who did it for
two reasons: (1) The great practical utility of having men well
acquainted with Roman law in order to intelligently handle
continental foreign affairs and (2) the excellent support which
could be found in Roman Public Law for principles of ab-
solutism * * *."
The greatest English jurist is Lord Bacon who contributed
greatly to the progress of English law and to the supremacy of
equity over common law.
This same English law was then transplanted in North
America during the 16th century. When the American Revolu-
tion of 1775 took place and resulted in the separation of the
colonies from the mother country, the English common law was
then introduced into British North America * * *
During the second half of the 18th century, Lord Mansfield
expanded the common law, by ,adopting the principles of law
merchant or mercantile law modelled especially along the lines
of the then new Roman-French maritime law and commercial
ordinances of Louis XIV and Louis XV. No other judge, except
perhaps Lord Bacon has done more for English law besides Lord
Mansfield.
In short the traditional assertion that the English law is
wholly indigenous and owes nothing to the influence of Roman
law is clearly unfounded-thanks it is also now passing away.
To be sure, the influence of Roman Law on English law has been
restricted as compared with the larger influence of that law on
Continental European and allied systems of law. This helps to
 PHILIPPINE LAW JOURNAL

explain the present relative backward and confused conditions

of English and American law as compared with the jurispru-
dence of all other modern civilized nations. (Sherman, Vol. 1,
pages 344-..
Conclusion.-Thanks to the Divine Providence our Philip-
pines became the common point of intersection for these three
legal influences. That there is no principle of iaw encounter-
able in the Philippine statute books which is not directly or
indirectly derived from the Roman Law is as clear as broad
daylight. That the legal terminology of ours abounds in words
and phrases of Latin origins is shown in the following list
prepared for the purpose: (1) gift (donatio) ; (2) prescription
(praescriptio) ; (3) usufruct (usufructus) ; (4) habitation (ha-
bitatio) ; (5) mortgage (hipoteca) ; (6) Lien (Tacita hipoteca)
(7) negligence (culpa); (8) set-off (compensatio, deductio);
(9) theft (furtum) ; (10) robbery (rapina) ; (11) quasi delicts
(quasi exdelicto) ; (12) joinder of issue (litis contestatio);
(13) summons (in jus vocatio, citation, admonitio, commoni-
tio) ; (14) injuria (injury) ; (15) torts or delicts (delicta, male-
facia) ; (16) fraud (delus). The above is a representative list
only for to enumerate all those available would be tantamount
to reproducing all the codes and even the detached pieces of
legislation. Happy is this incident for who will doubt the im-
portance of the Roman Law? After the Dark Ages, it was this
law that brought civilization back to Europe. With regard to
legislation in every country, experience teaches us that the
revival of Roman Law is always a powerful influence operating
for the betterment of the private law, purging it of its dress
of redundancy, prolexity, inconsistency and lack of uniformity,
and crystalizing it into the compact form of a codification. The
predominance of the Roman Law elements stamp ethical and
intellectual advantages. "The Roman jurists breathed deeply
the pure air of ethics; they taught the never-to-be-forgotten
truth that law and ethics are very closely related * * *."
The intellectual value of Roman Law study is incalculable, be-
cause it is many sided. The most salient advantages of a
Roman Law knowledge are these three: the practical benefit,
the philosophical benefit, the strictly professional benefit. "As
to the practical side, the study of Roman Law greatly contri-
butes to the formation of a correct legal style, for the style of
the Roman jurists is simple, clear, brief, terse, nervous, and
precise." In the matter of legal expression, Roman juris-
prudence is far superior to the Anglo-American, and is worthy
 ROMAN LAW IN THE PHILIPPINES 191

of imitation in this respect. "As to the philosophical benefit,

the study of Roman Law inevitably produces an ever-widening
realization that Roman Law is of enormous historical value to
modern nations. According to Professor James Bryce, the Ro-
man Law is inde, d world-wide for it represents the whole
unity of the civilized mankind. Finally as to the professional
merit, it is a wonderfully fascinating study. Certainly one can
not intelligently practice law in the Philippines in view of the
foregoing exposition of the various influences on her legislation
without a knowledge of Roman Law because from it was carved
the Mohammedan, the Spanish and the American Laws which
are the bases of the law of our country.