Tradition daring modernization:
the protection of the elite's
privileges through historical Catalan Law
Lidia Baeza, Maria Calvet, Maria Teresa Tous
Universitat Pompeu Fabra (Barcelona)
Tutor: Alfons Aragoneses
1.
Introduction to Catalan Regional Law. Historical background
Throughout this project, we will refer to a very specific
type of law, existing in some autonomous communities of Spain called Derecho Foral (in Spanish) or Dret Foral (in Catalan). Because it has
no precise, accurate translation in the English language, we will refer to it
as Regional Law, or more specifically
-given our subject of study- Catalan
Regional Law.
In case you might be wondering why Autonomous
Communities in Spain have such characteristic laws, we will take you through
the history, the challenges and intricacies of Regional Catalan Law.
Back in the day, sometime around the 10th
century, when towns were being founded in the Iberian peninsula, Kings and
noblemen (señores) granted what we call Cartas Pueblas. This document worked as
a sort of contract between the population and the King or the noblemen with the
aim of sorting and organizing the territories and regulating the settlement
conditions of newcomers. With the growth of populations, the Cartas Pueblas and
other types of law –such as feudal law– began to be unified in juridical norms
establishing a legal status applicable to a concrete territory. Historians do
agree on the fact that the unification of these kinds of documents set a
precedent for the emergence of the so-called Regional Laws, which were
particular, special and specific for each place.
However, this was just the very beginning and
we are not trying to establish a direct relation between Cartas Pueblas and
Regional Law. Between the 10th century and the 18th
century political spaces evolved and Spain went through multiple transitions.
In this sense, Cartas Pueblas work as a historical idea of a juridical pact
established in specific territories with the aim of organizing relationships.
We will now turn to Regional Law, briefly explaining the context under which it
emerged.
1.1 Constitutionalism
For Spain, the 18th century was a period of recovery and
reforms in many spheres of Spanish life: the population witnessed political and
legal unifications, the survival of old kingdoms and political spaces. The
country was characterized by its diversity in the political, cultural,
linguistic and legal realm. Nonetheless, despite this rich diversity, in Catalonia we encounter a
very specific group of people that will substantially influence the course of
Catalan Regional Law.
This group of people were the Catalan Elites,
a sector of the landowning class, industrialists, the Church seeking to stop
the disentailment (that is, the confiscation of land owned by the Church in
order to get either the property of the land or the income that the lands were
generating), and also, in general, the still important group that benefited
from the rents of landed estates with seigniorial roots.
A notorious example of the Catalan elites was
the Canals family, which founded the first “indianas”
factory in Catalonia in 1738 (the indianas
were a kind of fabric that was imported from India). This business was
extremely profitable and successful, and it prompted the economic development
of the city –although the main beneficiary was the family, who became
economically influential. Some other
examples of these families were the Bacardí family, the
Girona family, Vidal Cuadras, Güell or Folch (note: the families are referred
to by the first surname). Each of these families succeeded in a specific
business that would mark their influential position in the Catalan society.
It is indeed in these sectors in which the
idea of regional law emerges, with the aim of preserving their privileges. As
we will furtherly see in detail, these elites wanted to protect the status quo
and avoid changes in power dynamics so as to preserve tradition.
1.2
What is a
minority? The case of regional (foral) law
We now turn to the central issue that has served as the
basis for all our projects, minorities.
Firstly, taking the risk of defining something with which
you must already be very familiar, we would like to refer to the concept of
minority.
At a global level, we would establish that
when we talk about minorities we are referring to groups of people who differ
from the rest, from the majority, because they have a series of different
characteristics such as culture, race, ethnicity, religion, sexual orientation
or language.
When defining minorities, we must take into
account two elements: perception and power.
On the one hand, the element of perception is important because it is
not only about actual differences, but also about whether they are perceived as
relevant or not by members of the group and outsiders. Depending on the region,
these differences will be relevant depending on the culture, language,
ethnicity… and they might be linked to claims on national identity.
On the other hand, power is also relevant when
defining a minority group. Minorities can be considered as populations that are
numerically smaller than a majority; however, from a sociological perspective,
minority groups are considered as such when they are in a non-dominant
position. That is to say, a minority
group does not have enough power to influence the society in a certain way. It is worth noting that a group can
be non-dominant in one dimension, but dominant in another. In our case study, the
Catalan elites were numerically smaller than the Catalan society, but they had a great amount of
power in socioeconomic terms. This idea can lead the reader to question whether
the Catalan elites were or were not a minority: our point of view on the
matter, as we will keep discussing throughout the text, is that the elites
cannot be considered a minority group.
We find minorities an important point of
research in the legal sphere, as it is the duty of law to protect and guarantee
the rights and freedoms of the minorities that constitute a state.
Spain and
the linguistic minorities
As we have already said, we can affirm that Spain is a
diverse country socially, linguistically and also from the point of view of
legal traditions. As for its multilingualism, most of the languages spoken in
the different Autonomous Communities existed before the configuration of the
State, but their recognition as socially legitimate languages progressed in the
last three decades of the 20th century, with the transition from dictatorship
to democracy, since during the Franco dictatorship regionalism could only be
celebrated referring to folklore and traditionalism. Moreover, the use of
languages such as Catalan was forbidden, except for very limited texts that
were deemed appropriate, usually of a religious nature.
In the case of the Catalan language specifically, that’s
actually tightly related to Catalan identity and autonomy; a language of their
own and a law of their own. But it was not political autonomy or the protection
of the Catalan language that the elites wanted.
The elites: a minority or a
privileged group?
The word “elite” comes from the latin eligere, which means to choose or to
name. During the 19th century, this
word was imported from the French language and adopted the meaning that the
word has today: the Real Academia Española de la Lengua defines the concept as
a select or ruling minority. It is worth noting that the meaning
of this concept
changed across the years, as this group would grow or
lose economic power according to historical circumstances. The elites
represented the dominant economic power in Catalonia, and their role was
extremely influential in political, economic and social matters.
Throughout our project, we discuss the important
role of the Catalan elites in a project of economic and legal unification of
Spain. The elites gave support to the legal unification due to an aim of a
romantic reconstruction of the Catalan past through regional law and because
the old legal institutions from the Ancien Régime were functional to their
interests.
This interest for the medieval past even left
its mark on the architecture of the city of Barcelona, especially in the
reconstruction of the Gothic Quarter of Barcelona. The neo-Gothic style they
employ alludes to the past, and to traditional Catalan institutions. With this
reconstruction of medieval history, they connect with Spanish nationalism in
its nostalgia for the past.
Could we then, consider the elites a minority just
because of their number inferiority, or is it impossible to deny their position
as a privileged group?
Again, it is important to stress that these
elites were not trying to protect the use of their regional language, or even
the political autonomy of Catalonia. They were groups that actually advocated
the use of Castilian, and pursued the creation of a unified country with one
language and one central authority, by
continuing applying customary law, and
those legal institutions that allowed them to continue enjoying their privileged
status, sustained on the pillars of private property and the traditional family.
In contrast to all this we find those who constituted the great majority
and yet were made invisible: the working class, the peasants, the women. They were against customary
law, as it maintained traditional
standards and land contracts that kept them in an unfair position. These
traditional values that the elites were trying to defend were destroying any
hope of progress in the law.
1.3 Incompatibilities of the Constitutional System
and Regional Law
In this way, the
influence of the Catalan elites will be determinant in the 19th century, at the time of the introduction
of a constitutional project. In the eyes of these elites, constitutional
processes, unification of private law, and
a Code following the French model would threaten their privileges making all
regional laws disappear.
However, dissidence from these elites was not
the only factor slowing down the accomplishment of a constitutional project. In
fact, the issue lied in the idea that the new constitutional system established
upon a unitary tendency manifested itself as being incompatible with regional
law.
The essence of a constitution is based on the existence of a constituent power. That is, for instance, the
Parliament. The idea is that a Constitution has to emerge from a constituent
power and not from historical laws.
Before the first constitution was approved, statements
were made that a King and its land asked for one law only and one constitution,
legislation had to be unified in the whole kingdom.
«Un
rey y una patria piden de justicia
una sola Constitución y una sola ley. Nada
hacemos si la legislación no se uniforma en todas las provincias del reino» (informe del Ayuntamiento
de Cádiz de 21 de septiembre de 1809, remitido a la Comisión de Cortes)
1.4 1876’s constitutional text
The intensity of the conflict between the traditionalist
defendants of regional law, the radicals aiming for a unitary republic and the
federalists advocating for a Constitutional decreased with The Borbonic
Restoration starting in 1874. This period was directed towards the
reconstruction of a State built on Constitutionalism but also Regionalisms.
In this way, the new Constitutional text of
1876, presents itself not as radically innovative but more predisposed to
integrate somehow regional law without too many forms of parliamentary control.
One could argue that the Kings were more predisposed to keep this sector
content (remember the pacts we talked about in the beginning, this could be
seen as a pact between the Elites and the Monarchy).
1.5 Second Republic
Now, changes emerge with the arrival of the Second Republic
and a new constitutional text, the centralist State will be harshly questioned.
In fact, the Constitutional text of 1931 completely ignores and rejects this
traditionalist culture and opens new ways of understanding diversity. The major change was regarding
the defense of the Catalan language and culture, which became a priority of
some Catalan political actors and parties in the beginning of the 20th century.
Regionalism –as we understand it here– was not deemed
necessary but rather counterproductive in an autonomist state with a
constitutional system recognizing the political autonomy of regions. Hence, as
to not lose the rights the Elites had been benefiting from over the last
decades, they asked for a codification of regional law. This project was
debated but not accomplished.
As a conclusion, it is deemed important to mention that
constitutional projects and civil code projects were not independent nor
separate things, these processes were simultaneously ongoing. The idea is that
through these processes, the role played by the elites was changing while the
powers ruling the nation did. However, their claims were always strong and
directed towards the preservation of their privileges.
2.
The Nation-Building Process
2.1 The
Spanish Codification Processes: the consolidation of the elites’ privileges
A codification
process involves, generally:
1) Unification (Pio Caroni, 1996: “unification means modifying the
theoretical and systematical order of a legal system”). There is a new order
created, the classification has artificial characteristics.
2) Unification of the territory: in this case, the Spanish Civil Code
had the underlying intention of further unifying the Spanish territory through
the promulgation of a unified Code. This also entails the eradication of legal
pluralism: the same Code will be applicable in different areas of the territory
that have different legal realities.
3) Social uniformization: intention of eradicating social pluralism.
This was a real threat for the elites, since foral law had specific privileges
for the elites.
Therefore, we can extract a negative perspective linked to a
codification process: even though it is important to take into account the
different socioeconomic, cultural and legal realities, its will of unification
is likely to represent a threat for pluralism and the protection of minorities.
The legal unification process has to do with the idea of equality before the
law, and this challenges the idea of recognition of certain privileges. As we have
been discussing, the Catalan elites defended the preservation of privileges
rather than the granting of rights.
In Spain, there were several codification initiatives through the
19th century: the first one dates back to 1821, after the approval of the
Constitution of 1812. The process was influenced by the French model at first,
even though its failure would lead authors such as Francisco Tomás y Valiente
(1983) to state that “La historia
de la codificación civil en España fue una sucesión de proyectos incompletos o
derrotados, es decir, la larga
historia de una frustración”. It is more accurate to state that the French
codification model was not applicable in
Spain in 1821, as their social and legal realities were different. In Spain,
the existence of foral laws (derechos forales) was conditioning the
codification process, and the elites that were protected by regional (foral)
laws were not willing to give their privileges up. Therefore, the condition
that they imposed in order to grant the success of the codification process was
the recognition and protection of regional (foral) law.
The second codification project was in 1851, characterized by
individual and liberal trends. The most remarkable aspect of this second wave
was that civil law was unified according to traditional Castilian law,
alongside certain modernized articles. Therefore, this project absolutely
rejected legal traditions different from the Castilian one: as we have seen,
Spain is a pluralistic society with different legal traditions, and regardless
of that reality, regional laws and their institutions were wiped out. The legal
reasoning behind this decision can be attributed to the political codification
commission (who was in charge of drafting the Code): they stated that regional
law was nothing more than an obstacle to the effective implementation of a
general Civil Code (Real Orden de 12 de junio de 1851).
Nevertheless, this project did not succeed: it lacked the support of
the Church and, more importantly in relation to our case, the regional elites,
especially the Catalan.
As we have seen, traditional regional institutions as emphyteusis or
the old contracts between landowners and landworkers had no room under the
Civil Code draft of 1851, and this was one of the most important claims
that the elites were making. These traditional institutions were of special
interest
to the elites, particularly the Catalan, because they preserved them in a
privileged position in comparison to the rest of the Catalan society. Private property and family law
supporting the traditional family model were two of
the number of traditional legal institutions key for the maintenance of their
conservative, elitist social model.
Let us remember that these Catalan elites were
not defending other rights apart from those that were of interest to them. For
instance, they were not in favor of the preservation of linguistic rights,
since their main language was Spanish and not Catalan, which was used mainly by
popular classes. Even though the construction of a unified country through the
new Civil Code would mean the rejection of linguistic and cultural pluralism
(as they were only considering the Castilian tradition), the elites’ position
against this process was not to defend Catalan society and its linguistic and
cultural particularities –the elites were Spanish-speakers and did not consider
the linguistic minorities as a priority in the political and legal agenda.
The third attempt at the codification process
was in 1869, even though it was not successful due to its similarities with the
former project, and it was replaced by another codification process that was
influenced by the social context, la Restauración. This period of time is key
for the regional elites, as they were included in the codification commission:
the elites of Catalonia, Aragon, Navarre and Galice had the opportunity to
bring their regional legal requirements. This was a challenge, as those, if included
in the Code, would lead to the final approval of the “semi-unified Civil Code”,
taking into account some traditional regional legal institutions. The Spanish
Civil Code was approved between 1888 and 1889, and it is the one in force up to
this day.
2.2
The
Catalan Legal School
Let’s focus on this last codification period: in
Catalonia, we have to mention the important role of Manuel Duran i Bas, who was
the most representative jurist of the Catalan Legal School (Escola Jurídica Catalana). What these
jurists were defending was that by eliminating the traditional Catalan
institutions, the specificity of the Catalan economy and society would be
destroyed.
One way the elites found to give more
importance to the legal institutions that they wanted to protect unconditionally
was through the use of legal history. Research
has been conducted on this topic, since that period of time matches with the
reconstruction of the Gothic Quarter of Barcelona. The reconstruction of this
part of the city used the Medieval-Gothic style, which is apparently related to
the period of time when the traditional Catalan institutions were created.
Therefore, the elites legitimized their claim to the preservation of
traditional legal institutions through architecture and art, invoking the past
that had to be preserved. Through the actualization of traditional values that
medieval architecture invokes, the bourgeoisie class was establishing their
conservative roots even deeper in the Catalan society.
Duran i Bas’ traditional legal project was legitimized with this
architectonic project, as it made the project
visible and tangible
for the whole
Catalan society.
As we have been discussing, this project only
included the elites, who were a small percentage of the whole Catalan society. They largely rejected the
modernization of institutions that would include other sectors of society, and they stuck to traditional
institutions that were based on property and the traditional family model.
Therefore, women (as a historically marginalized group), the lower class
(mainly represented by the agrarian sector), and other minority groups such as
the Jews were not included in this project.
3.
Consequences of the preservation of Catalan
Regional Law
As we have already been exposing, Catalan regional law
allowed the protection of the elite's privileges through history. As a consequence, other
population groups continued to live in an inferior status, strapped by custom
and traditional values.
It’s not surprising to state that minority
groups, who could have benefited from modernisation, were relegated to a last
position, left out of the protection that new legislation could have afforded.
It is also necessary to mention women, a group
that has been overlooked throughout history.
The elites' advocacy for traditional values meant the continuation of
patriarchal standards and customs that did not allow for change. Would the unification of Civil Law have
led to the improvement of women’s rights?
As for the linguistic difference in Catalonia:
it is also interesting to note the mistreatment suffered by Catalan during
Francoism, as well as the fact that some might believe that the preservation of
this regional catalan law that protected only the elites, has enabled Catalonia
to have today its own Civil Code.
References
Aragoneses
A., 2021, “El jurista en el Barrio Gótico. Historicismo y Tradición en la
Cultura Jurídica Catalana del siglo XX”,
in Claret, J., Fuster Sobrepere, J., El regionalismo bien entendido.
Granada: Comares, pp.57-73.
Aragoneses, A., 2017, “Un proyecto
jurídico del franquismo. La compilación de derecho civil catalán y sus
juristas”, in Pérez Collados, J., Montagut Estragués, T., Los Juristas catalanes y el Estado español, Madrid: Marcial Pons,
pp. 337-368.
Baró Pazos,
J., 2017. Notas sobre el derecho civil de Cataluña ante el proceso codificador
español. Revista de Dret Històric Català
[Societat Catalana d’Estudis Jurídics], vol. 16, pp.p. 11-35.
Clavero, B., 1981. “Fueros en la
España Contemporánea: de la reacción antiliberal al federalismo vergonzante”, Revista de Estudios Políticos, 20, pp.47-59.
de Montagut, T., 2008, “Els Drets Històrics a
Catalunya”, Ivs Fvgit, 15,
pp.125-137.
Coronas,
S.,2005, “España: Nación y Constitución (1700-1812)”, Anuario de Historia del Derecho español. 75, pp.181-212.
Maragall,
J., 1905, Articles ideològics, socials i
polítics. pp.337-442.
Duran i Bas,
Manuel, Projecte d’apèndix, in Mirambell i Abancò, A. and Salvador Coderch, P., 1995, Projecte d'apèndix i materials precompilatoris del dret civil de Catalunya, Barcelona:
Departament de Justícia.
Roselló, E.,
2015, “Uniformidad versus unidad y las propuestas de un jurista catalán
(1843-1844)”, Revista de Dret Històric
Català , 14, pp. 215-241.
Sanjuan
Marroquin, J., 2018. Las élites
económicas barcelonesas. 1714-1919, PhD Thesis, Universitat de Barcelona,
[online] Available at: <http://hdl.handle.net/2445/123377>
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