Spain Law – Period of Codified Law

The nineteenth century is also for Spain the century of codification. Through the codes, legislative unity has finally been achieved in all fields of law, except civil law.

The constitutional era opens in Spanish history with the Constitution of Baiona (6 July 1808), imposed by Napoleon I on Ferdinand VII: after this there were, until 1931, the following constitutions: that of the Cortes of Cadiz (19 March 1812) in force in three different periods: 1812-1814, 1820- 1823, 1823-1837, twice abrogated by Ferdinand VII (1814, 1823), and restored on his death (1833); the royal statute of April 17, 1834 which completed the constitution of 1812; the new constitution of June 18, 1839; the constitution of 23 May 1845 which reformed that of 1837; the constitution of 1869; and finally that of June 30, 1876, suspended during the dictatorship of General Primo de Rivera (1923-1930). Later a new constitution was promulgated by the president of the republic on December 9, 1931.

The movement towards the codification of civil law begins in Spain in the second half of the century. XVIII. In fact, there are interesting precedents of this coding tendency both with politicians and with jurists. The codification begins with the Cortes of Cadiz and its history has two very different periods: the first goes from 1812 to 1880, the second begins with 1880. After a long preparation and following lively discussions in the press and in a series of congresses legal matters, a law called Bases’ was approved on 11 May 1888(fundamental criteria) for the definitive drafting of the civil code. According to them, the drafting was made, the code was presented to the cortes, who after a quick discussion approved it. It was published on October 6, 1888 and began to have the force of law on May 1, 1889. The code consists of a preliminary title and four books with 1976 articles. Its system is modeled on that of the French code (lib. I: On persons; lib. II: On goods, property and its modifications; lib. III: On the different ways of acquiring property; lib. IV: On obligations and contracts). Its sources were: 1. the 1851 project; 2. the later general laws, some fundamental, p. eg, on the civil register, on mortgages; 3. the regional legislations, in some few points; 4. the French, Italian and Portuguese codes; 5. customs, doctrine and jurisprudence. The code applied, before the 1936 civil war, in 39 of the 499 Spanish provinces. These 39 provinces form the regions of common law. The other 10 (Catalonia 4, Aragon 3, Navarre, Vizcaya and the Balearics) according to the criterion, which finally prevailed, were, as a rule, left with their own civil law. The exceptions are of two kinds. It is applied to all regions as a first degree supplementary: in matters ordered by general laws, in which the code is declared supplementary (art. 16). For Aragon and the Balearic Islands it is also supplementary in everything that does not oppose its own laws (art. 13). On the other hand, for the other regions with their own rights it is a final grade supplement; that is, when the other supplementary criteria are missing (art. 12). In practice, jurisprudence tends to extend the application of the code. In Catalonia, Fr. eg, which is the most tenacious advocate of her own law, 502 articles of the code are applied directly and 48 as supplementary ones: in all 638 articles out of 1976. From a purely scientific point of view, the critique of the code must be rather severe. The code was to be revised every ten years (Availadicionales 1st, 2nd, 3rd): the revision was not done even once. Regional rights also had to be codified and, approved, published as appendices to the code itself; only the appendix of Aragonese law was approved (7 December 1925), which came into force on 2 January 1926. Of the other regions, Vizcaya compiled its appendix in 1900, Navarre in 1901, the Balearics, in 1903; Galicia, in 1915. The Barcelona Academy of Law came to approve a project drawn up by the Trís, published in 1896. In 1899 an official commission was set up, but despite the extension granted to it in 1907, the work was not completed. Finally in 1930, after great difficulties, a commission composed of well-known jurists finished the drafting of the appendix in 370 articles (Apendice de Derecho catalán al código civil, Barcelona 1930), which was presented for approval on November 18 of the same year.

According to, the commercial code was approved by law of 22 August 1885; entered into force on January 1, 1886. The new code is divided into four books (I, Merchants and Commerce in general; II, Special contracts; III, Maritime Commerce; IV, Suspension of payments, bankruptcy, prescription) with a total of 955 items. The main source is the code of 1829. The German and French codes were also used, and the influence of the Italian, Belgian and Dutch codes is also noted. It completely separates commercial law from civil law and considers it objective law (art. 2), not proper law of a class (merchants). It lacks many institutions (naval mortgage, current account, publishing contract, etc.), which are regulated in later laws.

The Penal Code was promulgated on August 30, 1870. The official edition turned out so imperfect that he had to repeat (i January 1871). In the monarchical restoration of 1876, with the law of July 17, the main corrections necessary to bring the code into harmony with the constitution of that year were made.

Since this adaptation did not satisfy anyone, from 1880 there was a series of draft penal code. The most notable is the one presented by Francesco rilvela on 29 December 1884. In 1926 (12 March), the general commission for codification was charged with preparing a new penal code. It was presented to the government on July 12, 1927 and after being discussed in the national assembly, created by the dictatorship, it was approved on September 8, 1928 and went into effect on January 1, 1929. It was a very broad code (858 articles), in many respects remarkable and not infrequently very daring. The day following the fall of the monarchy (April 15, 1931) this penal code of the dictatorship was abolished and the old code of 1870 re-established. introduced the following May 2. The Criminal Code of 1870 consisted of three books in 626 articles. It had been the object of very harsh criticism: it did not correspond to the constitution; it contained too many pains; the commensuration of them was too mechanical; it left no freedom to the judge in the application. The reform tried to remedy these defects very widely. It meets three criteria: harmonize the code with the constitution; make it more technical and more complete with the insertion of the laws after 1870 that it was convenient to keep; finally humanize it. Here are the main reforms: the excusing and exonerating causes have been expanded; with regard to age up to 16, the laws for tutelary courts apply; aggravating causes are reduced; the death penalty and perpetual penalties are abolished; likewise, subsidiary liability with deprivation of liberty is eliminated, only in the event of a fine. In the attempt, the penalty can be lowered by up to two degrees. A very wide field is left to judicial arbitration. With death the pecuniary penalties are also extinguished. For rehabilitation, instead of an automatic system, an optional system has been adopted. Of the subsequent laws, the main one is that of February 4, 1932 concerning amnesties and pardons.

Through a series of partial projects and laws, the civil procedure code Ley de enjuiciamento civil was reached, which was promulgated on February 3, 1881 and became law from August 1 of the same year. The de Bases law on which it was drafted was approved on June 21, 1880. The code is very complicated as a system and as a procedure and is in absolute need of reform. This was attempted several times, the most recent in 1918, without ever reaching port.

Spain Law - Period of Codified Law