Spanish Constitutional Evolution (1812-1978)

Posted on Nov 19, 2024 in Law & Jurisprudence

The Constitutional Legal System (1812-1978)

Chronology and the Concept of Constitution

Chronology: 1812-1978. This stage, known as the “constitutional legal system,” spans from the first Spanish Constitution (Cadiz, 1812) to the most recent. The Constitution defines this era, marking the transition from the old regime to a constitutional one. The Constitution of Cadiz, under Ferdinand VII, was short-lived.

Definition: The Constitution is the supreme law of the nation, the fundamental law of the State. As with the current Spanish Constitution, it serves as the axis for all laws.

Characteristics of the Law

This period aimed for the unification of law across the Spanish nation, as envisioned in Article 258 of the Constitution of Cadiz. It marked a new stage in Spanish legal history, with the article proclaiming the autonomy of a new legal era (from 01/01/1986, Spain’s integration into the EU mandates adherence to its rules).

The Civil Code was intended to be uniform across the monarchy, except for reforms introduced by the Courts, reflecting the Constitution’s principles.

Constitution 1978, Clause One:

  • Provincial rights.
  • These rights can evolve within the framework of the European Community and the Statute of Autonomy.

Law serves as the instrument for codifying legal practices, including court procedures with or without the King’s involvement. The interpretation of legal sources (law, customs, and general principles of law) and jurisprudence is broad. Article 258 is key to understanding the legal culture.

  • Legal Culture: A national culture, open and evolving, ensuring welfare and justice for all. It draws from Spanish law and incorporates foreign models, notably the French model.

Codification

Definition of Code

As defined by 19th-century jurist Felipe Sánchez Román, a code embodies unity of purpose and time, rationalizing the legal system into a methodical and systematic body of law.

Alfonso García Gay describes law as a comprehensive framework to address societal problems at any given time. Law represents society’s legal responses to its challenges.

  • A code is a structured legal text, drafted with unity and rationality, addressing contemporary legal issues.

Historical Evolution

Two Types of Codes:

  • Enlightened Codes: 18th-century European codes reflecting old regime tenets (despotism), found in Central Europe, Russia, Bavaria, and Southern Italy.
    • New Codes: Emerging from the French Revolution’s principles, serving as a model for the codification movement.

French Consolidation:

Key figures in French history include Henry IV, Louis XIV (centralization and absolute power), and Napoleon (consolidation under French Revolution principles).

Louis XIV’s system introduced separate codes (breaking from medieval legal unity), including trade, water and forests, and criminal procedure, influencing French codification.

Separate Coding System:

  • 1804: Civil Code
  • 1807: Commercial Code
  • 1810: Penal Code

Article 258 of the Constitution of Cadiz (1812):

  • 1889: Civil Code
  • 1829: Commercial Code
  • 1822: Penal Code

Napoleon’s influence was crucial in French codification. In 1800, he established the State Council, composed of lawyers who drafted the Civil Code.

French Jurists:

Early French jurists emphasized reason, viewing law as a product of reason. They drew inspiration from past rationalist jurists.

The French codification was influenced by Gaius, incorporating three elements:

  • Ius Civile: The law specific to a people. French jurists aimed for a unified law for all French citizens.
  • Ius Gentium: Law based on human reason, applicable to all. Napoleon believed the Civil Code could be applied universally due to its basis in reason.
  • Three Books: Gaius organized legal matters into three books: people, things, and actions.

In 1804, the “Napoleonic Code” was promulgated, aiming to eliminate irrational vestiges in French law and establish a just political order.

In the early 19th century, two conceptions of law emerged:

  1. Rational Conception: Emphasized by Napoleon’s jurists, prioritizing codified law. This led to the Historical School of Law.
  2. Historical Conception: Law as a manifestation of the collective soul of the people, emphasizing customs. This led to the Historical School of Law in Germany, led by Savigny.

Spanish Constitutions

(Leaf ana)

  • ARTICLE 258 OF THE CONSTITUTION OF CADIZ AS THE POINT OF SPANISH CODING

Political background

The arrival of a new dynasty like that of the Bourbons in the eighteenth century has consequences:

– Foreign policy: France and Spain leading to family pacts Both houses belong to the Bourbons. The relationship with France goes into bankruptcy by the French Revolution, one of its main consequences is the destruction of the Spanish Armada.

In 1807 there is a treaty with France to divide the kingdom of Portugal

In 1808 in Madrid leads the outbreak May 2. This provincial boards come in all parts of Spain. This is passed to the central committee to coordinate all efforts and calls for general and special courts for the first time.

In early 1810 start to dissolve, giving way to the Regency (general and special courts for the entire monarchy (including overseas) and axial form one single Spanish Constitution).

The opening session was given on 24 September 1810. Cadiz is blocked by the French. On the island of Leon. (San Fernando) will inaugurate the courts of Cadiz.

The principles of this constitution are settled in place in the first decree carried out by Diego Muñoz Torresan: the sovereignty vested in the nation, it leads to the separation of powers, is regarded as the nation King Ferdinand VII and also appointing the judiciary.

The period of the Constitution of Cadiz from 1810 to 1814.

Formed a committee to draft the Spanish constitution. In August 1811, reads the preface of the Spanish constitution. Following are reading for discussion at the 318 items. Subsequently proclaimed the establishment of Cadiz.

Article 258

“The civil code and the criminal will be trading around same for all the monarchy without prejudice to the particular circumstances variations that may make the courts”

The Constitution of Cadiz means the passage of the old regime to the new constitutional regime.

With the death of Fernando VII and the arrival of Elizabeth II is not consolidated the liberal regime and therefore rooted in Cadiz.

He stands on the time of collection to the time of the codes.

Editorial Process

In the period 1809-1810 central board governs.

This performs a query posed to the country by private-owned enterprises, a number of issues as a means to improve the legislation.

Is answered in the reading of these issues, three consequences:

No one talks to resolve the legal problems of Spain in a codified law in the French manner.

There is talk of codes in effect a compilation of law.

There was a clear awareness in order to codify the law but a clear conscience in order to reform laws.

There is a need for three French mode codes (civil, criminal and commercial =

All this changes in relation to the Constitution of Cadiz.

There are two interpretations of the writing process

  • Traditional: there is a committee of 15 members. Meet in session. In the session of February 5, 1811 a board from his fellow Catalan explained the desirability of introducing constitutional principle of the encoding principle of law that would give rise to Article 258 of the Constitution of Cadiz but was not axial.
  • Francisco Tomas y Valiente, in the session of December 9, 1810 the Commission commissioned to create the constitution. Committees will be created later in order to carry out reforms girders of the legislation, will be answered at the session of February 5, 1811. In this session, explain that the laws are wonderful but confusing and therefore is asked to form committees.

This involved three members of the committee:

Aguntin Arguelles, we must form committees composed of deputies and lawyers of notorious reputation.

Francisco Gutierrez of the garden, before forming committees necessary EERA elaborated upon the constitution.

Lazaro Ramon Dou, proposing that they should take into account our historical texts.

Between meetings of February 5 and November 21, 1811 is the time when the courts are considering adoption by discussion of Article 258.

On November 21, Article 258 is approved before that interventions are given:

Jose manuel bordoa, had doubts about the unification of law overseas.

Joaquin fernandez de Leyva, the Mexican deputy replies to this it will not.

The Constitution of Cadiz is unitary

Article 258: Girders unification of law codes.

Article 248: juricdiciones unit fires and for all.

Principles proclaims

  • The unification of the law for all of Spain: the March 19, 1812 is approved the constitution of Cadiz. When Fernando VII died first Carlist war breaks out. It presents a model and separate legal status of the monarchy (Carlos Maria Isidro and Elizabeth II)
  • Reference to the means by which proclaims the separate coding system in the French model. (Civil, criminal and trade)
  • Protection for the courts to exercise legislative.

SPANISH AND CONSTITUTIONS FCODIFICACION

On all three occasions proclaimed the Criminal Code.

· Articles actual 1834: Art 33

Progressive · Constitution 1837: Article 4

Moderate · Constitution 1845: Article 4

Donnat · Constitution of 1853: Article 5

· Revolution curious charters unification decree of December 6, 1868: s. 258

Democratic · Constitution 1869: Article 91

· Constitution Federal First Spanish Republic in 1873: preliminary title seventh paragraph

· Constitution of the notables of 1876: art 75. Play to Article 91 of the constitution of 1869.