History of Spanish Law: Codes and Constitutions to 1845

Foundations of Spanish Legal Tradition

The *Ius Commune*

The *ius commune* (common law) in Europe, particularly in Western European countries, changed national laws. Justinian's compilation of manuscripts (Italy) was compiled with cause for interest among *studiosi*. These are precepts of *ius canonicum* / *ius feudale* for practical use.

Formation of the *Ius Commune*

• *Ius Canon* and *Ius Roman* (Digest): The Bologna School studied these texts. Notable figures include Imerius (disaggregated - the gloss is clear precepts), Azzo (stresses), and Summa Codicis.
• *Ius Canonicum*: Doctrinal development from the Gregorian Reform (Gregory VII). Gratian's "Decretum" contains various sources and commentary on *ius canonicum*.
• *Ius Feudale*: Got - Libri Feudorum (private). Sutor and Anonymous is a joint decision relating to feudal judicial matters.

Early Spanish Legal Texts

• "Exceptiones Petri Legum Romanorum": Done in Provence by Peter, with a foreword and 4 books of criminal law excerpts from Justinian's Code.
• "Lo Codi" (1149): Summary of Justinian's law for the justices of Catalan Provence. Translated into Castilian, French, and Latin.

Post-Glossators: Tried to combine Justinian's law with local customs, feudal law, and statutory (municipal) law. Bartolus and Baldus are notable.

Legal Works of Alfonso X

Alfonso X:

*Fuero Real*

Royal jurisdiction: 4 books of religious, political, judicial, civil, and penal law. Laws come from the Cortes. Municipal jurisdiction was in some locations (due to the tendency of Alfonso to replace municipal *fueros*). Inspired by the *Fuero de Soria*.

*Espéculo*

Legal body formed by 5 books (originally there were 9) containing content of the articles.

*Las Siete Partidas*

The most important Spanish code. Represents the reception of *ius commune* in Castile.

• 1st Part: Sources of law and ecclesiastical matters.
• 2nd Part: Public law.
• 3rd Part: Judicial organization and procedures.
• 4th, 5th, 6th Parts: Civil law.
• 7th Part: Criminal law (legal reference to the status of Muslims and Jews).

They are inspired by Greek and Latin classics, Bible texts, medieval *fueros*, Roman law, and canon law. Translated into Catalan, Portuguese, Galician, and English. 3 editions: AD Montalvo (1491), G. López (1565), Royal Academy of History (1807). By the mid-14th century, articles were doctrinal, not legal.

Spanish Constitutional History

The Constitution of 1812 is considered the beginning of the constitutional regime in Spain. The Cortes of Cadiz were convened with the desire to legislate and draft a constitution for Spain. They formulated 3 fundamental principles: affirmation of political unity, national sovereignty, Cortes composed of deputies from the nation, and a hereditary, moderate monarchy.

The Constitution of 1812 (Cadiz)

Known as "La Pepa", adopted on March 19, 1812. It imitated some articles from the French Constitution of 1791. It attempted to combine traditional ideas with revolutionary principles, achieving a transnational balance.

Principles of the 1812 Constitution

• Established national sovereignty.
• Division of powers.
• Fundamental rights and freedoms (expression, association, press), private property.
• Recognized that the King is superior to the Cortes but limited by this constitution.
• It is rigid; the representation system is not based on class.
• It is divided into 3 parts: The Nation as an independent sovereign, the King, and the judiciary with judges and courts.
• Equality before the law, guarantee system.
• Declared the Catholic religion as the faith of the state.

It laid the groundwork for the Spanish constitutional system. It was repealed in 1814 by Ferdinand VII, returned to force in 1820, repealed in 1823, and returned to force in 1836 after the Mutiny of La Granja.

The Royal Statute of 1834

Inspired by the French Charter granted in 1814. Sets the division of the Cortes into two chambers: Peers and Procurators. It is conservative and failed to satisfy liberals or conservatives. It has 50 articles. It does not support national sovereignty and imitates the French Charter of 1814 by Louis XVIII. It does not regulate fundamental rights, and the electoral system is very restrictive.

The Constitution of 1837

Result of the Mutiny of La Granja. Presented on February 24, 1837. Inspired by the French Constitution of 1830, the Spanish Constitution of 1812, the Royal Statute of 1834, and the Belgian Constitution of 1831. Based on national sovereignty. Has 77 articles, lists rights and freedoms, and is flexible.

Principles of the 1837 Constitution

• Constitution of Cadiz.
• National sovereignty.
• Revision of ordinary laws.

It consists of two chambers: the Congress of Deputies and the Senate (legislative power). Senators are appointed by the King (must be over 40 years and wealthy). Each province had a Senator (the King's sons were automatically Senators at 25). 1 Deputy per 50,000 inhabitants of each province. Electoral control by provincial councils and municipalities.

Critique of the 1837 Constitution

• Ideological struggle over the function of government, lack of national will.
• Difficulties in forming governments, centralist liberal.
• In force for 8 years.

The Constitution of 1845