Spanish Civil Law: A Historical and Contemporary Perspective

Posted on Dec 2, 2024 in Law & Jurisprudence

TMA 1: Civil Law

The Concept of Civil Law

The etymology of words permits us to know their true meaning. This is the case with Civil Law, which has been shaped over centuries.

Civil Law in Ancient Rome

Roman law is the basis of our law. The expression “Civil Law” (ius civile) could mean two things:

  • Subjectively: The law of citizens (cives)
  • Objectively: The law of the city (civitas)

Roman citizens held the privilege of a primary legal position. Ius civile was traditional and formal. Alongside it, other legal systems existed:

  • Ius honorarium: Created by the praetor. Applicable to residents and non-citizens. It was flexible.
  • Ius gentium: Applicable to foreigners, primarily for commerce. It arose from Roman interactions with non-Roman citizens, who needed swift legal solutions. These standards became instruments for the development of Civil Law.

Differences between the praetor’s law (ius honorarium and ius gentium) and civil law (ius civile):

Source of Production:

  1. Ius civile: Primarily from laws, the Twelve Tables, Senate decrees.
  2. Praetor’s law (jurisprudence): Knowledge and application of law, and creation of legal actions by tribunals.

Content:

  1. Ius civile: Substantive legal rules.
  2. Ius honorarium and Ius gentium: Primarily procedural law, affecting the form of legal actions.

Principles:

  1. Ius civile: Based on classical (and ecclesiastical) institutions.
  2. Praetor’s law: Solved concrete problems with greater agility.

The laws of citizens and others were complementary, solving problems not addressed in classical law. This led to the formation of a single legal system for all of Rome. This occurred from 212 AD, when Caracalla granted citizenship to all inhabitants of the Roman Empire.

Civil Law in the Middle Ages

In 476 AD, the Western Roman Empire fell, while the Eastern Roman Empire continued for a thousand years more. In the East, Emperor Justinian ordered the compilation of the Corpus Juris Civilis. It copied and interpreted Roman laws, adapting them for coherence.

In the West, legal and political fragmentation occurred:

  • Specific laws appeared for each territory.
  • Laws for specific groups (guilds, universities) also emerged.
  • Customary law, local courts, city statutes, and more became the basis, especially in the North.

With the empire gone, Christianity became a unifying factor. The formal reconstruction of the Roman Empire was attempted with the Holy Roman Empire. Charlemagne was crowned emperor in 800 AD. The empire was now Christian, with two visible heads: the emperor and the pope. The Church had great influence and acted beneficially as a counterbalance to political power. The University of Bologna (12th century) specialized in law, based on the Corpus Juris Civilis. European kings sent their lawyers to study Roman law there. Two stages of Roman law study can be differentiated:

  1. 12th to 14th centuries: Glossators and post-glossators commented on the text.
  2. 14th to 17th centuries: A systematic study based on cases, extracting common principles.

These studies led to the reception of common law. In the former Western Roman Empire (and now Germany), Roman law and canon law (ecclesiastical law) were studied. Civil law was considered Roman, private, and common. It was Roman because it came from the Corpus Juris Civilis, private because it could be applied to individuals, and common because it applied throughout the empire. Canon law shared this common function and served as a supplementary source of interpretation. However, kings, nobles, and cities pressed for specific regulations, maintaining their own legal systems (ius proprium). Common law became subsidiary throughout Europe. The Middle Ages saw the first expansion: commercial relations with people outside Europe became more frequent. New, flexible standards and institutions were needed (e.g., the letter of exchange), leading to the embryo of mercantile law. Private law began to grow.

Civil Law in the Modern and Contemporary Ages

The Middle Ages ended in 1453 with the fall of Constantinople, marking the start of the Modern Age. Europe experienced a crisis in the fundamentals of religious and political unity. The nation-state developed, rejecting any higher power. The papacy was in crisis due to the Protestant Reformation. Protestants emphasized individual truth over general truth, linking religion to the monarch and territory. Causes of this loss of unity:

  1. Replacement of medieval theocentrism with radical anthropocentrism.
  2. Rationalism: Individual reason as the source of knowledge.

Roman law continued to be studied, not as history but as a rational system. Northern monarchs issued laws in the field of interpersonal relations (private law), which gained importance and became national private law, not Roman. This legislative dispersion contradicted the order and systematization sought by reason. Two phases attempted to resolve this:

  1. Compilation of laws within the same nation.
  2. Codification.

1st Phase: Compilations

Compilation is the systematic ordering of legal norms. Examples in Spain:

  1. Ordinances of Alcalá (first compilation)
  2. Compilation of Diaz de Montalvo (15th century)
  3. Nueva Recopilación (16th century)
  4. Novísima Recopilación (19th century)

These compilations attempted to rationalize civil law, primarily compiling national laws. From then on, civil law was understood as national private law.

2nd Phase: Codification

Codification is a further rationalization of norms. It merges legal texts, creating a single legal text for a legal branch. Codification is rational, while compilation is merely useful. Codification greatly affects our concept of civil law, focusing on content. Codification has three pillars:

  • Philosophical: Based on natural law, related to Enlightenment thought.
  • Political: Culmination of the modern state based on the nation.
  • Ideological: Response to the bourgeois movement, defending the individual against abuses of power.

Codification is related to constitutionalism. It establishes the legal relationship between those holding political power and citizens, clarifying the rights and obligations of both. Codification defines the rights of individuals and citizens. Examples:

  • Individual liberty => Right to private property
  • Principle of equality => Right to freedom of the press

This interrelation is evident in the preliminary titles of civil codes, which are practically constitutional. Codification and constitutionalization occur similarly in all countries. Important codifications:

  • Prussian General Territorial Law (18th century)
  • Napoleonic Code (early 19th century)
  • German Civil Code (BGB, 1900)
  • Swiss and Italian Civil Codes (20th century)

Codification revolutionized the form and content of legal rules. The most revolutionary transformation was the new structure of state power: sovereignty resides in the nation, which is the primary source of law. However, it did not break with traditional law, as seen in the continued study of Roman law.

Current Concept of Civil Law

Civil law can be defined as “general common private law.” It is private law because it regulates interpersonal relations. However, civil law is not equal to all private law; they are different viewpoints. Civil law refers to early institutions and their historical evolution. It is general private law because many areas have become independent from common law, leaving basic institutions and principles in civil law. It is common law in two senses:

  • Territorial application: Common law in opposition to regional autonomy.
  • Content: Common law versus special law, containing basic concepts and serving as a supplementary source for all other areas.

Contents of Civil Law

Content:

Civil law includes the law of the person as such, not as a human being in society engaged in a specific activity. It is “unskilled private law.” Professor Hernandez Gil defined it as “private law generally aimed at regulating the person in their organizational structure, in the right accruing to him as such, and relationships arising from their integration into family and be subject to an estate within the community.”

Study:

There are two ways to systematize civil law:

1. The classical Roman-French plan (Gaius/Napoleonic Code), dividing the area into three parts:

  1. Persons
  2. Things (over which man has dominion)
  3. Modes of acquiring ownership (property)

The Spanish Civil Code follows this system but divides it into four books:

  1. Book I: Persons (natural and legal) and family (marriage, paternity, custody).
  2. Book II: Ownership, possession, and limited rights (usufruct, servitudes, mortgage, pledge).
  3. Book III: Instruments for acquiring property, especially inheritance.
  4. Book IV: Obligations and contracts.

2. Savigny’s plan, dividing the study into five parts:

  • General Part: Individuals, legal capacity, protection, and basic concepts of interpersonal relationships and private liberty. Includes legal persons.
  • Treaty I: Obligations and contracts.
  • Treaty II: Rights related to things.
  • Treaty III: Family law.
  • Treaty IV: Law of succession.

Codification

Codification in Spain

Codification in the West responded to Enlightenment ideas. In Spain, it was complicated and began with the Bourbons. It aimed to rationalize a territorially divided system. The Enlightenment’s influence was limited in Spain. Territorial sentiments (defense of regional law) were strong, hindering codification. The Cadiz Constitution of 1812 first mentioned the need for codes, adopting a centralist model (Art. 258).

Codification Period

  1. 1820-1851: Civil Code projects, both private and official. The most important was the 1851 project by the Law Commission (Garcia Goyena), which proposed abolishing regional laws, leading to its rejection.
  2. 1851-1880: Enactment of general laws for all of Spain (Mortgage Act 1861, Notaries Act 1862, Provisional Civil Marriage Act 1870, Civil Registration Act 1870).
  3. 1880-1889: Development of the Civil Code. A mixed model was adopted: a Common Civil Code with appendices for territories with regional law. A two-phase process was followed: first, the Cortes approved a basic law; second, a committee drafted the code. The Law of Bases (1888, Alonso Martinez) established the Civil Code’s guidelines (Art. 5, 6). This compromised the goal of legal equality. The Civil Code was adopted in May 1889, with a second edition released later that month.

Civil Code and Legal Order

The Civil Code has never been the sole text on civil law. Special laws coexist with or modify it. These laws are classified into five groups:

  1. Laws developing the Civil Code’s bases (e.g., Mortgage Law, Horizontal Property Law).
  2. Laws amending the Civil Code (e.g., suppression of usury).
  3. Special laws derogating from the Civil Code (e.g., lease legislation).
  4. Laws complementary to the Civil Code (e.g., chattel mortgage law).
  5. Laws repealing parts of the Civil Code (e.g., Arbitration Law).

State Civil Law and Regional Civil Law

Civil Code and Regional Law Before the 1978 Constitution

The codification system aimed to publish appendices for regional laws after the Civil Code, containing essential regional institutions. These appendices were complementary to the Civil Code, exceptional in character, and intended to preserve essential regional norms. This system was ineffective; only Aragon’s appendix was published (1925). The 1946 Zaragoza Congress changed the system, adopting a regionalist approach. Compilations were created for each region, autonomous from the Civil Code, with a maximum criterion. This system was more successful, with compilations published for Vizcaya, Alava, Catalonia, Aragon, Balearic Islands, Galicia, and Navarre (as personal law).

Regional Civil Law After the 1978 Constitution and Statutes of Autonomy

The 1978 Constitution shifted from a centralized to an autonomous model, allowing some regions to modify historical civil law. Previously, existing institutions were retained, but new ones could not be created. Under the Constitution, regions can legislate on civil matters if they: 1) are autonomous communities, 2) assume legislative powers in their Statute of Autonomy, and 3) have historical civil or regional law. The goal of a single civil law was abandoned. Title VIII of the Constitution addresses the powers of the State and Autonomous Communities (Art. 148, 149.1). The Constitution establishes three rules for regional competence in civil matters: 1) The State retains general jurisdiction, 2) Some Autonomous Communities can maintain, modify, and develop regional law, and 3) The State retains exclusive jurisdiction over certain aspects. STC 88/1993 clarified “preservation,” “modification,” and “development.” The State has exclusive jurisdiction over: 1) Implementation and effectiveness of legal norms, 2) Forms of marriage, 3) Public records and instruments, 4) Basis of contractual obligations, 5) Conflict of laws rules, and 6) Sources of law. State regulations in these areas apply throughout Spain. In shared areas, regional law has preference. Regional law excludes state law and the law of other regions. State law is subsidiary to regional law in non-exclusive areas.