INTRODUCTORY CHAPTER

(1) Law Considered As ‘Instructions from the Maker 5

If an inventor in a moment of generosity, should favor
you with the gift of a complicated newly-invented machine,
how would you make it work? The answer is simple: follow his
instructions. Follow the machine manual’s instructions, and
the machine will work. Disregard them, and the machine will
simply refuse to function.
How can the human machine — this strange, lovable, com-
plex machine called MAN, with its mortal body, and its eternal
soul — be made to function well? The answer is also simple:
follow the instructions of its Maker. Unless this is done, the
human machine will become a futile, senseless object, utterly
incapable of fulfilling its destiny. These instructions from the
NATURAL LAW
Maker — we call the LAW.

(2) Faculties and Objects of the Human Mind

The human mind consists principally of two faculties:
(a) the intellect — the proper object of which is the TRUTH;
and
(b) the will — the proper object of which is the GOOD.
The intellect cannot rest till it has comprehended INFI-
NITE TRUTH; the will cannot be satisfied till it has grasped
INFINITE GOOD.
Since the combination of the truth and the good is what
we call the beautiful, it follows that the combination of INFI-
NITE TRUTH and INFINITE GOOD is INFINITE BEAUTY
or GOD.
Thus it is that man, who was created by GOD (the First
Cause), is ultimately destined for GOD (Who is also the Last
Cause).

Thus, it is also that man, whose purpose is to know GOD,

to love HIM, and to serve HIM in this world, and to be happy
with HIM forever in the next, can attain his final destiny only
by following the LAW.

(3) ‘Law’ Defined in its Most Generic Sense

Law may be defined in its most generic signification as
an ordinance of reason promulgated for the common good by
Him Who is in charge.

To be useful and fair, law has to be promulgated, i.e.,

made known to those who are expected to follow it.

(4) Classification of Law According to the Manner of its

Promulgation
NATURAL LAW
Natural Moral Law (applies to
(promulgated impliedly in our higher faculties) (ex-
our conscience and body) ample: do good and avoid
evil)
Law of Nature (applies to both
our higher and lower fac-
ulties) (example: the law of
gravity)
POSITIVE LAW Divine Positive Law
(promulgated expressly or ments)
directly)
Divine-Hitman Positive Law
(like the Commandments
of the Catholic Church)
Human Positive Law ’
(like Congressional Sta-
tutes or Executive
Orders)

(NOTE: Understandably, this book will deal only with

Human Positive Law, and at that, only a portion thereof. The
two other kinds of Positive Law are more properly discussed
in Tomes on Theology and Theodicy.)

(5) ‘Human Positive’ Law Defined

In general, human positive law is a reasonable rule
of action, expressly or directly promulgated by competent
human authority for the common good, and usually, but not
necessarily, imposing a sanction in case of disobedience.
Justice Bradley of the United States Supreme Court
says — “law is a science of principles by which civil society is
regulated and held together, by which right is enforced, and
wrong is detected and punished.”
De Page speaks of law as “the body of rules governing the
conduct of persons living in association with others, under the
guaranty of social compulsion.”
Upon the other hand, Sanchez Roman says that law is
a rule of conduct, just, obligatory, promulgated by legitimate
authority, and of common observance and benefit.

A (6) Essential Elements of Human Positive Law

(a) Reasonable rule of action.
(b) Due promulgation — for otherwise obedience can hardly
be expected.
(c) Promulgation by competent authority.
(d) Generally, a sanction imposed for disobedience.
 (7) Human Positive Law Distinguished from Morality
While human positive law covers only external conduct,
morality covers both external acts and internal thoughts.
Moreover, the former is enforced by the State; this is not so
in the case of morality, except insofar as moral legislation has
been enacted.

(8) Bases of Human Positive Law

Human positive law has for its basic premises the follow-
ing Divine Pronouncements, the natural moral nature of man,
legislative enactments, jurisprudence or judicial decisions,
conventions or treaties, customs and traditions.

(9) Concepts of Law as ‘Derecho’ and ‘Ley’

(a) Considered as a cause, “derecho* is the abstract science
of law; considered as an effect, it is the given.
(b) “Ley” is a specific law.
(NOTE: A student of law (derecho) studies specific
laws [leyes].)
(10) Classification of Human Positive Law
(a) According to whether a right is given, or merely the pro-
cedure for enforcement is laid down:
1) Substantive law — that which establishes rights and
duties. (See Bustos v. Lucero, 81 Phil. 640)
2) Remedial (or procedural or adjective) law — that
which prescribes the manner of enforcing legal rights
and claims.
(b) According to the scope or content of the law:
1) Private law — that which regulates the relations of
the members of a community with one another. (This
consists of Civil and Commercial Laws.)
2) Public law — that which governs the relations of the
individual with the State or ruler or community as
a whole. (This includes Political Law, Criminal or
Penal Law, and Remedial Law.)
(c) According to force or effect:
1) Mandatory (absolute, imperative) and/or Prohibi-
tive laws — those which have to be complied with,
because they are expressive of public policy: disobe-
dience is punished either by direct penalties qr by
considering an act or contract void. (Examples: a
transfer of large cattle is not valid unless registered
[Sec. 33, Act 1147]; a donation of real property must
be in a public instrument to be valid even as between
the parties. [Art. 749, Civil Code].)
2) Permissive (or suppletory) laws — those which may
be deviated from, if the individual so desires. (Exam-
 pie: In the case of “hidden treasure,” the finder gets
50% and the owner of the land on which it is found
gets 50% [See Art. 438], However, by agreement, the
proportion can be changed.)

(11) ‘Civil Law’ Defined

(a) It is that branch of the law that generally treats of the
personal and family relations of an individual, his property
and successional rights, and the effects of his obligations
and contracts.
(b) It is that mass of precepts that determine and regulate
the relations of assistance, authority, and obedience
among members of a family, and those which exist among
members of a society for the protection of private interests
(1 Sanchez Roman, Estudios de Derecho Civil, p. 70 citing
Arribas), family relations, and property rights. (1 Falcon
9)
(NOTE: The word “civil” is derived from the Latin
word “civiles,” a citizen, as distinguished from a savage or
a barbarian. Originally, the word pertained to a member
of a “civitas” or free political community. [Black’s Law
Dictionary, p. 331].)

(12) ‘Civil Law’ Distinguished from ‘Political Law’

While civil law governs the relations of the members of
a community with one another, political law deals with the"
relations of the people and the government.

(13) ‘Civil Law’ Distinguished from the ‘Civil Code’

While most of our civil laws are found in the Civil Code,
still the Civil Code is not the only place where we can find our
civil laws. A Civil Code is a compilation of existing civil laws,
scientifically arranged into books, titles, chapters, and sub-
heads and promulgated by legislative authority (Black’s Law
Dictionary, p. 334). A codification may be necessary to provide
for simplicity, unity, order, and reform in legislation. From time
to time, however additional civil statutes, civil presidential

decrees (during the existence of martial law), or civil executive

orders may be promulgated. For instance, Presidential Decree
603, otherwise known as “The Child and Youth Welfare Code,”
effective six months from the date of its approval on December
10, 1974 (Art. 213 thereof) introduces new rules on adoption
and child welfare. In fact, said Code expressly repeals Arts. 334
up to 348 inclusive (articles on adoption) of the Civil Code, and
replaces them with Articles 27 to 42 inclusive of The Child and
Youth Welfare Code (Art. 26, PD 603). In turn, PD 603 has
been amended by PD 1179.
Several years back, then President Corazon C. Aquino
promulgated “The Family Code of the Philippines,” Executive
Order 209, July 6, 1987, as amended by Executive Order 227,
July 17, 1987. Art. 257 thereof reads:
“Art. 257. This Code shall take effect one year after
the completion of its publication in a newspaper of general
circulation, as certified by the Executive Secretary, Office
of the President.
Publication shall likewise be made in the Official
Gazette, (n)”
Arts. 254, 255 and 256 of The Family Code read as follows:
“Art. 254. Titles III, IV, V, VI, VII, VIII, IX, XI and
XV of Book I of Republic Act 386, otherwise known as the
Civil Code of the Philippines as amended, and Articles 17,
18, 19, 27, 28, 29, 30, 31, 39, 40, 41 and 42 of Presidential
Decree 603, otherwise known as The Child and Youth
Welfare Code, as amended, and fell regulations, or parts
thereof, inconsistent herewith are hereby repealed, (n)
Art. 255. If any provision of this Code is held invalid,
all the other provisions not affected thereby shall remain
valid, (n)
Art. 256. This Code shall have retroactive effect in-
sofar as it does not prejudice or impair vested or acquired
rights in accordance with the Civil Code or other laws,
(n)”

QUERY
How would you compare the Civil Law system in its
“governance” and “trend” with that of the Common Law
system?
ANS.: Governance in Civil Law is codal, statutory, and
written law. It is additionally derived from case law. Common
Law is basically derived from Case Law.
As regards trend, Civil Law is now tending to rely more
and more on decisions of the courts explaining the laws. Com-
mon Law is now codifying laws more and more. So they are
now merging towards similar systems.