Spanish Legal History

Spanish Legal History

Short Legal History of Spain

Spanish law has an ancient national tradition and presents a most complex amalgamation of customary, Roman, local and modern codified law, combined with many unassimilated and distinct vestiges of the laws of historically independent Spanish regions. Spanish legal history is variously divided into from six to nine ages. The pre-Roman civilizations of Iberian and Celt tribes and Greek and Phoenician colonizers have left little imprint on the region´s legal development; the (classical) Roman legislation introduced during the period 200 B.C. to A.D. 450 survive in textual form, but also now lack relevance for contemporary Spanish law.

The Spanish legal tradition essentially commenced with the institutions developed under the Visigothic state of the 5th to the 7th centuries. The invaders from the north developed their laws to be applied to the Germanic tribal population while Roman law was applied to the indigenous inhabitants. The first written codification, the code of Euric (about 480), was revised by succeeding kings´ all designed for further unification of the general law. The most important Germanic code, the Breviary of Alaric (or the Lex romana visigothorum), is actually a compilation of texts or pieces of classical Roman law and jurisprudence designed to regulate the relations of the local subject population, much as Euric´s code regulated the Germanic overlords. Alaric´s breviary was “published” about A.D. 506 and reinforced the “duality” of the Germanic approach to legislation. This double system of separate laws to be applied to separate populations ultimately gave way to the ascendancy of a single, stronger Germanic law applied throughout the region. The final Gothic code of this period represents actually the first in a long continuum of Spanish customary laws still having some effect today. The Liber judiciorum (“Book of judges”) was framed in the mid-7th century and was promulgated in its final form in 694. Now known as the Fuero juzgo after its 13th century Spanish translation, this extensive compilation of all aspects of law family relations, inheritance, obligations, procedure, crimes, etc., represents a unifying recompilation of all Visigothic legislation and, in effect, abolished the dualistic approach to lawmaking exhibited by its precursors. The Fuero juzgo survived the Moorish occupation and its half-hearted imposition of Arabic legal traditions. Little of Moorish law influenced later Spanish legislation, however much the general cultural and social morals were affected. The Fuero juzgo´s treatment of community property also accorded with Arabic practice, and in this instance, Moorish and local customary law were applied equally.

The formative period for the development of customary law in Spain was that of the Christian Reconquest, spanning the 11th to the 15th centuries. The Fuero viejo or “ancient code” was the first collection of customs and was promulgated in Castile around 922, although it had less impact than the earlier Fuero juzgo recompiled and issued by Alfonso X, “The Wise,” in 1254. This sophisticated revision of all the earlier compilations became the model for subsequent codes. It was followed in 1265 by Alfonso´s monumental legal work, Los siete partidas, which combined all previous Spanish law with elements of canon and Roman law. With the exception of Justinian´s Corpus juris civilis, it was the most comprehensive and encyclopedic piece of European legislation until modern times, and certainly stands as the controlling Spanish compilation, containing a systematic approach to law and legal knowledge in its seven books. The Partidas were not actually confirmed until 1348, when they were made obligatory on all points not contradictory of the Fuero real or local Fueros or privileges.

The new political order that followed the complete expulsion of the Moors brought with it a further development of legislation under Ferdinand and Isabella that closed out the period of the Christian reconquest. Unfortunately, this final spate of lawmaking further confused an already clouded legal tradition, and the codes promulgated in 1490 and 1502 were less than effective in responding to the needs of a new society for order and control in the legislative process. The Siete partidas represented a farsighted attempt to synthesize and present all law in a rational system, but when it was finally promulgated, it was simply added on, haphazardly, to preexisting compilations of such patchwork legislation. Instead of abrogating old and obsolete texts, the Spanish and Portuguese issued recompilations. These attempted to bring some kind of order out of the chaos of accumulated legislation and decrees to declare priorities in case of conflicts.

The two centuries of Hapsburg reign that followed were characterized by further attempts at developing systematic compilations or codifications while, at the same time, coping with a growing body of local or foral legislation that was often in conflict with national law. The major achievements were the Nueva recopilación of 1567, which remained the basic Spanish codification for two hundred years, and (as a final try in 1680) the Recopilación de las leyes de las Indias, which aimed to embody, in a single instrument, all the law and administrative regulations pertaining to the Spanish holdings in the New World. A further “improvement” under the Bourbons was the Novísima recopilación of 1805, which actually represented a further step backwards; it was a chaotic arrangement of Castilian and other Spanish legislation, mixing medieval and modern laws in an unranked assemblage of public and private law. It was put into force as (almost literally) Napoleon´s troops were crossing the Pyrenees and, except for the French interregnum, it remained by default the controlling body of Spanish law, although recourse to earlier collections was available.3

A separate concept, or the creation of a series of co-equal legal institutions, had developed in Spain, undergoing periods of ascendancy and decline since the reign of Alfonso The Wise. While Spanish national law, essentially an extension of Castilian law, was expanding under the absolute monarchies, another genre of law was also being asserted in a more limited sphere. The “foral systems” or “non-Castilian law” represent the end result of seven centuries of local customary law, especially civil law, that was (and still is) recognized as equal if not superior to national civil and administrative law. Today five regions and ten of Spain´s 50 provinces still retain these local laws, originating in custom but now accorded the authority of written law.

The unification of the Spanish Kingdom was accomplished by stages and depended a great deal on the political history of the regions which eventually became parts of it. The unity so attained was the result of a series of compromises which accommodated the regional element in the legal, political, and social systems of the nation. Therefore, while this unification involved a degree of fusion, it usually involved the recognition of the established regional and local legal customs which perpetuated the existing social order.

The final period of Spanish legislative development was the constitutional era of the 19th century, which actually extended into the 20th century (coming to an end in 1936). A second constitutional period can be assumed as beginning in 1978. Post-Napoleonic codification commenced with the Constitution of Cadiz of 1812, which established a short-lived democracy and called for the codification of all major branches of Spanish law. Various commissions worked on draft codes throughout the century; the most important work on a civil code was directed by Florencio Garcia Goyena in the 1840s which was discussed in draft form for 30 years. By 1880 the need for a national civil code and for the resolution of claims by the foral states to their own civil law codifications had become acute. In 1889 the Spanish civil code was enacted. It was an interesting and eclectic piece of legislation drawing on many sources (especially the Code Napoleon, although heavily influenced by Castilian and canon law) and is thus a not-entirely successful compromise mixture of codified Castilian law (with a number of gaps) with uncodified foral law given precedence where necessary or expedient, and finally, customary law. Codification of commercial law actually commenced with the Ordinances of Bilbao of 1737, but the first modern code was promulgated in 1829, revised in 1868 and entirely revised and repromulgated in 1885.

In this final format, it is a much broader European work than the civil code and shows the influence of 19th century German legal scholarship. Civil procedure in Spain is actually codified in two instruments: the civil procedure code (Ley de enjuiciamiento civil) of 1881 and the Ley orgánica del poder judicial, which governs the judiciary. The three 19th century codifications of civil and commercial and procedural law remain in force in Spain today; although much amended, they have not been subject to any overall revision or reform. The judiciary code was completely revised in 1985 and 2001.

Spain has had a number of criminal codes. The first, of 1848, lasted (with many modifications) into the Franco era, as did the code of criminal procedure of 1882. Under the newly constituted monarchy, the old criminal codes proved unattractive in their repressive approaches and formats. Franco´s 1944 consolidation of the Código penal was reformed in 1983 and 1989. The Ley de enjuiciamiento criminal was reformed in 1988.

Spanish law has undergone a major transformation in the post-Franco era. Public law has been greatly liberalized, and the enlargement of social and labor legislation begun in the 1930s and continued under Franco (but along the paternalistic structures of the corporate state) have now been modernized and further extended. Spain´s entry into the European Union has resulted in a flurry of legislative activity reforming and remodeling company and corporate law and legislation affecting financial institutions and the sale and issuance of securities. Anxious for expanded foreign investment and general participation in the economic activities of the Union, Spain continues the large-scale reform and modernization of its commercial and related legislation.

Author: Ken Pennington

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