Apuntes Historia Woalah

LESSONS-OF-HISTORY-OF-LAW.
pdf
Sabina_Martincu
Historia del Derecho
1º Grado en Derecho
Facultad de Derecho
Universitat de València
Reservados todos los derechos.

No se permite la explotación económica ni la transformación de esta obra. Queda permitida la impresión en su totalidad.
III. FEUDALISM
-It goes from The Middle Ages until The Modern Age with the liberal revolution. (IX-XVIII)*
-Along this time, feudalism has changed and has adapted to the different historical
situations.
-At the end of the day in 1789 the abolition of feudal rights was declared, and in 1793 the
nobility had lost their lands and possessions.
-With the disappearance of the Roman Empire, visigoths invaded the Spanish territory
forming kingdoms in which the royal power together with the church and the nobles
dominates and organizes. They tried to imitate more or less the roman tradition.
-They had a principle of justice and a public army. But it didn’t last long because of the new
invasions. So they recurred to the strength principle where the soldiers had to fight to defend
their lives and possessions. The peasants needed to find protection under the strong ones.
-On the other hand, the clergy had the duty of conserving the culture, besides praying.
-Lords started doing ties with peasants with fidelity relationships that had benefits for both
sides, protection for the peasants and the lords had an army formed by peasants. A.K.A
Lordy relationships. The land was of the lords, that meant that if the vassals wanted to use
it, they had to pay a bill for it. (Ovens, fishing areas, harvests…) from the harvests the Lord
had a percentage of it as well.
- Between kings and noblemen, there was the vassalage relationship, recompensed with
lands or donations. Both of them are nobles, privileged. Same condition. Created to solve
lords problems. That’s how monarchy appeared and lasted until now . This worked as a net,
every lord was connected to this net. Everyone was connected to the king. It’s like a chain,
you pull the king and everyone is pulled as well. So, having a lord is connecting you directly
with the king because of this chain. They both had benefits from this relationship. PRIMUS
INTERPARES. The king was chosen by his equals, the vassals.
-The king was taking advice from the noblemen because the army was under the
noblemen’s power.
-This structure was maintained more persistently in Galicia, Catalonia and Valencia.
CRONOLOGY
-Prefeudalism.
In the barbarian kingdoms there were perceived vassalages and land donations. As well
as with the Visigoths.
-Classic Feudalism.
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Reservados todos los derechos. No se permite la explotación económica ni la transformación de esta obra. Queda permitida la impresión en su totalidad.
Consolidation of these feudal institutions. The peasants are more and more dependents of
lords. There is a notorious emergency of cities with their statutes and furs to regulate trade
and other activities like handicrafts. (Artesanía)
-Late Feudalism.
Apparition of monarchies. Feudal army is no longer needed, because the king can pay for
his own army.
ORIGINS OF FEUDALISM
Violence times, the impossibility for the public power to affront the external invasions, the
constant fights between soldiers, all of that led to feudalism.
Muslims
When Spain was nothing more than a group of independent kingdoms, the first Arab groups
began to arrive in the Iberian Peninsula. Specifically, in the year 711. They entered Spain at
that time through the Strait of Gibraltar and continued to advance north until they were
stopped in Poitiers.
With the Muslim arrival to the peninsula (because we were close to them, even though
Muslim expansion was a global phenomenon) the Visigoths were already established in the
peninsula. The Spanish population always adapted to the conditions. So that’s what they did
when Muslims arrived as well, they adapted to their way of living. It was actually so easy for
them to adapt that many lords negotiated with Muslims. Many visigoths embraced islam
without any problems.
Muslims couldn’t conquer the north , they reached it but what happened with Romans or
visigoths … the north was difficult to conquer. The mountains, la cordillera cantábrica. It
was difficult crossing the mountains. The northern population was poor, isolated; they only
had water because of the huge amount of rain. Muslims, as visigoths or roman, saw that
conquering that territory was useless, due to the poverty of it and the difficulty it presented,
and also because they weren’t civilized. (Flintstones). Another contra for the conquerors
was the river Duero. That geographical position between the river and the mountains was a
difficult one to call for support.
The nobles pact with the Muslims. Changed their names, embraced Islam. Others went
outside the Muslim territory towards the north with the Visigoths. That would be easier for
them to become vassals of the francs. For them that would be, having a backup in case the
Muslims would want to spoil them. And that is also beneficial for the empire because it would
mean having a protection on the frontier under the pirineos. Visigoths disappeared. They
become the Christian kingdoms that are going to force al al-andalus to retreat Down south.
Catalan counties that would become catalunya. Then, the reino de Aragon, that would
become Aragon. Reino de Leon. Reino de Navarra. Kingdom of Castilla. Portugal was a
vassalage territory from Leon. Feudalism.
Normands
si lees esto me debes un besito

Historia del Derecho
Banco de apuntes de la
(Germanic villages from Escandinavia ) The great plague. They have the most powerful
marine army. They arrive on the Peninsula by means of the Guadalquivir to Cordoba.
CLASSES AND DOMINANT ESTATEMENTS
The dominant class was the clergy and the nobility. The rest were peasants, subjected to
harsh living conditions.
For this estatement to exist it was needed:
- A privileged state (church and nobility)
- A blood borne transmission with limited external access
The nobility
They were free, they had lands, territories, and warrior vocation. They didn’t have to pay
taxes. They had the only duties of fighting and hunting.
To become one they had to do the ceremony where a king embraces a vassal when he
kneels and he starches him with a sword. These ceremonies were legally established. And
he had to have a horse and be a warrior. Besides, there was a consecration where the
church had to accept and benedict.
Children of knights were the only ones who were allowed to be part of this order of cavalry.
The warriors didn’t know how to read or write. This was related to the wise, the clergy.
The clergy
This is another privileged state, also exempted from paying taxes, and they also had
territories such as monasteries.
- Their main duty was the culture. They represent the order of cavalry or the vassalage
presentations. And they support the society division in statements legitimate from
God.
- The church was like a feudal lord. Kings and noblemen gave to the church lands,
territories, and donations…
There was a clear duality between the high clergy, that came from nobles, and the low
clergy, that came from all the classes.
VASSALAGE AND LORDY RELATIONSHIPS
It was impossible for them to abandon these relationships. Except from death causes, or
beating the vassal, violate his wife or daughter, wanting to slave him, taking a good from him
or not defending him in his need.
Vassalage may come or not with land benefits. It’s an agreement represented by a tribute
consisting of an external ceremony and a declaration of will with an oath.
The vassal owes the auxilium and consilium. Auxilium was being a warrior basically, and
sometimes they were rewarded for it. The consilium was the participation in the

administration in the curia to help in justice and legislative tasks. In exchange the lord
protects them and swears loyalty, helping them when they need.
A person can be tied to more than one vassalage relationship and receive various rewards.
But there is always the feudo legio, the main one.
Lordy relationships. The land was of the lords, that meant that if the vassals wanted to use
it, they had to pay a bill for it. (Ovens, fishing areas, harvests…) from the harvests the Lord
had a percentage of it as well.
Between kings and noblemen, there was the vassalage relationship, recompensed with
lands or donations. Both of them are nobles, privileged. Same condition. Created to solve
lords problems. That’s how monarchy appeared and lasted until now . This worked as a net,
every lord was connected to this net. Everyone was connected to the king. It’s like a chain,
you pull the king and everyone is pulled as well. So, having a lord is connecting you directly
with the king because of this chain. They both had benefits from this relationship.
The investiture was a ceremony by which an overlord transferred a fief to a vassal or by

which, in ecclesiastical law, an elected cleric received the pastoral ring and staff (the
symbols of spiritual office) signifying the transfer of the office.
CATALAN AND LEONESE-CASTILIAN FEUDALISM
These counties were under the control of the Count of Barcelona.

In Castilla y León, feudalism presents some peculiar traits; a historiographic tradition said
that there wasn’t feudalism in Castilian lands. But they had feudal schemes.
*The existence of payments in money to vassals and to those who weren’t was a special
trait from that territory. With the debility of the muslims, and new taxes, the monarch was
obtaining great income. That’s why he could pay :
- vassals instead of feudos
- His own army instead of the vassals.
They had a monarch. He could dismiss his vassals if he was angry and break the feudal tie.
The vassal could ask for pardon three times.
PEASANTS
Servitude and property
The peasants were the most numerous group of the society. Apart from them, there were the
slaves and the servants. But the slavery was extinguishing because of the religious and
economical influence because the slaves weren’t giving as much profit as vassals or
servants.
A manor is an economical unit of exploitation and a political unity of organization.

They were territories, many times fragmented. The land was considered as a property of
the lord but the vassal was the one who would have to work it and pay for it some bills.
Extension and description of the manor
Manors were extending because of the organizations of the conquerors in the villages they
achieved. Because of the occupation of new lands. Villages that copied that form of
organization.
The vassals from the manors had to pay to the lords for every single activity they were
doing and also the tithe for the church.
Tendencies in the low Middle Ages
-Separation of the manors due to the church’s appropriation.

-Reduction or even disapparition of the manor reserves. Appropriation of administrators.
-New ways of land use: by means of long term leases.
-Appearance of cities with franchises and cards that will change that primary feudal
society.
IV. RECONQUER AND REPOPULATION OF THE

CHRISTIAN KINGDOMS
The recovery of the territory from the muslims. The entry of the Muslims in 711, until 1492
with the fall of Granada.
ISLAMIC AL ANDALUS
In 711 a reduced muslim army (Tarik) defeats Rodrigo in the battle of Guadalete. They
started to extend more and more until Carlos Martel stopped them in Poitiers. From there on
they were limited to their territory, they didn't try to expand to france.
The kingdom of Toledo was in a harsh situation. There were discrepancies with two
dynasties confronted for the throne, and a badly organized army…So the muslims took
advantage of it and entered the Peninsula. BUT in the 11th century the muslims were losing
power towards the Christians.
In 1085 the almoravids invaded the peninsula (to enforce the muslims) and pushed back
the christians. Then again they started losing power, the unity was broken because the
califato divided in taifas, and the almohads (another enforcement) restored the unity but
they weren't that strong.
In 1212, las Navas de Tolosa, the Christian army defeated the almohads. They reconquered
almost all the territories but Granada’s kingdom.
Another African army tried to beat the christians but King Alfonso XI defeated them. At the
end of the day, they achieved Granada in “the taking of Granada” 1492.
THE EMPIRE AND THE 5 KINGDOMS
The kingdoms were divided in 5: Portugal, Castilla, León, Navarra and Aragón, with the
catalan counties.
After the death of the last general of the califato there was a decomposition of taifas and the
Christians started repopulating the territory. The first austurleonese kings repopulated
Galicia (specially) and the north of the peninsula because the Muslims couldn’t get there
because of the disadvantages of the territory. (Duero, cordillera cantábrica, uncivilized,
poor).
Asturian people wanted to be a kingdom even though they were a few. Their flag has a
yellow stripe because of the cross from the visigoths. They pretend to be the Heirs of the
visigoths. Pelayo and his crew were the firsts that claimed them as Visigoths and started a
descent. But we don’t know that. Marriage between Romans and Visigoths was legally
forbidden.
Castilian Kingdom: after several divisions of this territory the final and definitive union came
with Fernando III the saint in 1230.
Navarre’s kingdom was a mix of two different realities. The old Visigoth reality. It had
territories on both sides of the pirineos so they were kinda French that's why the bourbons
are navarese. Its origin was a Roman family that established there, turned into Visigoths,
then they turned into Muslims and finally into navarese. They were vassals of CarloMagno.
He sent his crew to the south but it wasn't going well so they retreated. When they crossed
the pyrenees they were ambushed by the basques.
The myth of the kingdom of Aragon is that the king is elected, not blood born. And its
always gonna be submitted to the laws of the land and the kingdom.
Catalan counties, With a so typical feudal structure that they rejected the figure of the king.
Ctalunya never had a king. The count of Barcelona is their superior (Filip the VI).
REPOPULATION AND RECONQUER
The christian victories not always meant a people settlement in lands, but only some
strongholds on the border.
Northern Repopulation
In the north we find an essentially manorial repopulation with some urban centers that are
fortress-cities where there were the king or the noblemen.
- Duero River as a frontier: Galicia, Leon, North of Castilla.
- “Presura”(act of occupation and distribution of lands) and lordy repopulation. Nobility
started taking land and distributing the property.
- Fortress cities and trading cities.

Because of the certainty of this territory thanks to their geographical position, cities started to
reappear again, because there was a huge pilgrimage because of Santiago de Compostela.
The frontiers, borders and “Extremaduras”
The territory was not stable, nobility wasn’t strong enough to support only by feudal frames
this new land. So they repopulated it with the northern population,giving them lands,
offering tax abolition to them becoming somehow privileged. (Frontier furs). This
population granted jurisdictional rights.
After Las Naves de Tolosa 1492, these frontiers started to disappear because it was now
easy to reconquer the peninsula after the fall of Granada.
- 1085 the conquest of Toledo: frontier system.
- Privileges and repopulation freedom.
- Military orders. They were monks.
Conquest and repopulation in the XIIIth century.
The caliphates divided and gave place to the “taifas” because of clashes between them.
The monarchs took advance of the situation and advanced on the muslim positions and
lands.
Fernando III and his son conquered Andalucía and Murcia.
Jaume I conquered Valencia and Mallorca.
Andalucía had lost many people because they went to Granada, still on muslim’s hands.
Besides that there were epidemies and crisis in the XIVth Century.
Valencia and Murcia, however, had a lot of muslim and mudejars population, who lived under
the christian yoke. That’s why in Valencia the feudal forms were better kept.
The long interregnum and the end of the reconquest
Granada took so long on reconquering because the XIVth century was a period that had a
big crisis, the plague crisis.
The fight versus the muslims and the taxes they paid strengthened the monarchies.
Especially the Castilian one.
This dashed repopulation, will lead to a multiple Spain regarding the forms of using the
lands.
- Economic crisis and civil war in Castilla

- Monarchy, nobility and “payeses de la remensa”
- Granada’s conquest
*Catalonian feudal hierarchy
Count of Barcelona, Other Counts, Viscounts, Comitores.

V. GENERIC LAW TRAITS
CHRONOLOGY AND STATUS OF THE SOURCES
How was legal dispositions in those times? What was the law?
There were many Spanish legal systems, but they all had common traits.
LIBER IUDICIORUM HERITAGE (EXAM).
Libro judicial . It’s a law book in Latin, it's linked to the Romans.
The Visigoths were the ones that were in the peninsula when the Romans arrived.
This book was a mixture of Roman law and Visigoth law. The Visigoths were a heavily
romanized barbarian population, before entering the peninsula. They had an empire formed
by Romans. They were strictly forbidden to marry someone from the peninsula.
It was diverse because there were many different realities.
Halftime their domination, they permitted their empire to “mix” with the peninsula's population
and they adapted to Catholicism.
Their religion was Christian, but Christian was a big mix of beliefs. Visigoths didn’t believe
that Jesus was God. (Originally). It’s present in the kingdoms up north because they were
visigoths.
This was the last Visigoth law created until the Muslim arrival.
The gothic order was the Visigoth´s order.
The people from Castilla had to go to Leon to be judge, traveling there was troubling
because the road was long. The law of Leon was the Visigoth one. They refused the Visigoth
Law.
Customary dispositions are unwritten laws, based on the traditions and costumes of
our community.
MIDDLE AGES (Muslim invasion - fall of granada)
The Middle Ages go from VIII to XV. It started with the muslim invasion in 711 and ended
with the fall of Granada in 1492.
This period is divided in two:
- The early Middle ages: Classic feudalism, warrior class, in which the king (primus
inter pares) controls politically and socially the society. And together with the
clergy and the nobility, the king controls the peasants.
- The late Middle Ages: in the XIIth Century, cities appeared. And with these, the
bourgeoisie or the middle class. We can highlight the power of the monarch among
the warriors and bourgeois because of the texts and ideas of the common law.

*society is going to evolve in a similar way but separately. From the different legal
systems, there are many common traits that could represent the characteristics of the
early middle age legal system. EXAM:
EARLY MIDDLE AGES (alta Edad Media)

Traits:
-Liber Iudiciorum influence, especially in the territories that surrounded the king.
-customary law emergence, which is unwritten. There is a feudal law known by the monarchs
and noblemen, jurists do not exist so it can’t be written. This custom regulated the noble and
feudal relationship.
-Medieval law is particular and diversified with a Self Subsisting economy.
Customary Law Based which was Individual and Diversified. Lordy

and Noble: new legal ways. Liber Iudiciorum Heritage.
The system would be established to solve lordy and vassalage relationships.
Fuero is the older way to speak about what we now call law. Local ones. There were local
fueros.
They are almost all equal because they were addressed for villages more or less with the
same society condition, same area. It could be used to name a legal disposition of a general
legal system. It’s like we use in Spanish “ley”; they used fuero. In order to organize and
regulate life in these villages.
Instead of fueros in valencia was called carta puebla.
There was one specific family of fuero, that was the turning point of old classical ways
and the new ways. They are away from the classical feudal rules. The Frontier ones.
They shared a very significant part of its content because they were local legal dispositions
as well.
When a privileged state was established anywhere, their privileges came with them.
____________
In the feudal system, being a member of the state means having certain privileges, not
necessarily being rich, therefore, having a specific legal condition. Not all rich are privileged.
You could own land but not have the right to collect taxes on the land, this is because of
being rich, but not noble, therefore not having jurisdictional rights.
In the end, if the nobility establishes anywhere, they would end up ruling over the population,
so they aren’t well accepted in those territories.
Nobility privilege is granted to a non-nobility population, this privilege doesn’t travel with
them, outside the city walls they are normal peasants.
They’re so desperate to attract people that they don’t even care about what religion you
belong to. Muslims could live in Christian territory without a problem, they even were
welcome.
Frontier charters and social classes. Everyone was restricted to the task they were designed
to, you only did your job, only specialize in one thing.
Collazos :mix of a vassalage relationship and a Lordy one, they are submitted to servitude,
but they still have some of the functions of higher rank people, such as going to the military.
Laborers: jornaleros, they work for salary days.
Yugueros: herd owners.
Farmers and shepherds.
Craftsmen
Traders: people who trade goods between villages, mainly wool from the sheep, but they
were a minority.
Knights get their income because they own a lot of sheep and animals, they hire shepherds
and trade with wool.
Minorities: Muslims and Jews. Slave had worse conditions than Muslims and Jews, they
were treated better in these cities, had more privileges, but paid more taxes than the rest.
The Muslim communities could live with peace and harmony with the rest, in times of
conflict, these were expelled from the cities. The issue with the Muslims is that over time
they became cheap labor. These were focused in the inner land, the dry land, and they were
a big part of the population. Dry land was for Muslims, and good land for Christians.
Jews have been persecuted during a lot of time, in that times money producing money was a
sin, which Jews did, they did loanings, etc. there are periods when they were really well
accepted, and others when they were prosecuted, killed…
When centuries later, Muslims were expelled, this supposed a big economic change for the
kingdom.
To occupy public positions people had to prove that they were Christian, that they had blood
purity.
Slaves are common and useful but very insignificant, they’re used for domestic tasks, but
with the existence of peasants slaves were not really necessary. Muslims were more
profitable than slaves.

To attract new citizens, the different territories started granting privileges that belonged to the
nobility, and then started to figure out how to get taxes from these people.
Toledo was the first large city they took from Al-Andalus, it was a large and rich city, where
there weren’t religious minorities, Muslims, Jews and Christian’s were all high in number, it
was also a heavily tax charged city.
Toledo was the Visigoth capital, where more Christians lived, before Al-Andalus.
Troubles between Muslims and Christians were judged by Muslim law and between 2
Christians, by Christian law, they had this status by paying taxes.
They found the liber iudiciorum. (Christian laws)
This book became really useful.
Castilian and French nobility were privileged, they mixed these Christian laws, and the legal
system evolved.
When the city was conquered, they faced the reality of the survival of a strong Christian
community because of their legal condition.
When the Christian crown arrived it was aware of this new reality that is going to be
profitable in the future because it is modern in the sense of going with the flow. Returning to
a more organized common administration, stability of territories, etc.
Strong taxes coming from trade, away from the north legal system, there was very
conservative in the way of feudal and lordy there.
During this century the monarchy from Toledo was able to adjust these structures(trade,
taxes, liber iudiciorum..) to create a new legal text, local yet, mega large bc included liber
iudiciorum, that was going to be used frequently in the centuries to come.
The content that made this text (fuero de Toledo) so advanced with the reorganization and
consolidation of kingdoms ruled by administration headed by a monarchy, was :
-the ability to combine and to preserve strong commercial aspiration and spirit of those
villages with a strong nobility presence.
-heavy taxation
-strong preservation of nobility privileges.
-appoint local authorities, delegates of the king.
-jurisdiction, judges applying sentences and cases. Appointed by the king.
These things weren’t like an imposition, however as a need. Bc liber iudiciorum implies
courts to judges, with legal dispositions.

Alcahueta: women who helped the relationships to work. (Giving poissons, etc…)
Fuero the Toledo was used in many cities, its going to turn into Fuero Juzgo, translation of
liber iudiciorum. Involved roman law and not customary law at all.
Civil institutions used to solve ordinary issues.
Legislators are going to reuse ancient texts, adapting, making them to sound new, but using
old legal tools constantly. They are lazy. They're going to recover the whole Roman legacy
to use in their time.
It was the turning point for the legal system.
LATE MIDDLE AGES : (baja Edad Media) universities -

Ius commune
The trade was going to reappear. This activity is linked to living in a city. Linked to trade
there was a specific social group. The bourgeoisie. Living in cities, not committed to land,
not the majority of the society, paying taxes).
With the taxation things changed. There was need for an army so they called their own
soldiers. The king raised his army. Trade taxation was so important. He could charge trade.
The structure of the system will remain intact. Privileges, feudalism… (feudalism 2.0).
Many characteristics from the previous legal system stay practically the same, although it
becomes more general thanks to the new tools they use.
One of the main tools of the legal system was to be provided by “Ius commune”, a
global phenomenon, the revival of something that was forgotten, because it became
useless in a feudal frame, when this frame started to disappear, Ius commune
appeared.
Universities start appearing in the Late Middle Ages, law studies are divided into canon law
and civil law.
The nobility remains and even though vassalage relationships start desappearing, their
legislation is used for other purposes.
General legal dispositions addressed to the whole kingdom appear for the first time ,
they’re new.
The kingdoms had a perfectly established and defined territory, for the first time.
The lordy system remains almost intact. The changes of the legal system start with
society.

Lesson 5: Ius commune
Ius commune is recovering Roman law. They were going to use Ius commune as a
common ground in Europe for all the legal systems. Roman law should be filtered.
How did the recovery start? : the Liber Iudiciorum was influential. Spain, France,
Italy, Romania… were heavily romanized countries.
From Italy this movement was going to spread all over the country recovering roman
law using the eastern sources, corpus iuris civilis de justiniano.
Roman law was going to provide a lot of useful text, providing legal tools for the
monarchy’s favor and to solve many problems. Includes a fully developed system of
civil, tread, loan, mortgage institutions. That was useful for the trade to grow.
Reasons :
Monarchies, insufficiency of early medieval law, superiority and technical perfection, empire.
How did it start : because there was someone that was studying to recover those
texts, the clergymen. They have no legal knowledge of expertise at all. Legal
schools don’t exist. There was the Bible, theology, the things that influenced the
clergymen. They are the ones that are going to start legal schools and universities.
There was a need for legal expertise to understand this.
There was a mong in Italy, and his crew were really interested in the Latin language.
He found a part of the corpus iuris civilis(roman law), a book from nine. He wanted to
improve his Latin, he found out a lot of new meanings, legal new words and a Nobel
from Bologna thought that book would be very useful.
There was a struggle between the pope and the emperor. This is the ground in
which the Roman law was so useful.
First we find one book, so the purpose is to find the whole book or copies of it.
Bologna, Florence, Rome… they also had a legal task made by non legal people
with no legal expertise at all. That will start a legal movement. How did they do it if
they didn’t know a thing about law? : the mindset of the era. For us science, wisdom
evolves and increases with time. For them the mindset was (theological) that
knowledge is a legacy of the past, wisdom is perfectly closed on the past, so they
didn’t have to improve it just to learn it. They were based in the Bible. Apart from
church there was nothing. The clergymen (glossators) were the single ones that
knew something. At the margins they put the most interesting things (glossas,
providing extra information to the text, respecting it) and they kept the original text in
the middle.
The Emperor wanted to know about the book, and the pope also did. The interest
bursted for those texts.
In Spain, Alfonso X copied the Roman situation. He declared himself an Emperor,
so his wills would be law.
Their education, as mongs, was based on theology and on philosophy (Aristoteles).
(Chronology : from XII-XIII)
Topics and legal reasoning
A legal method traveled with the legal system.

They could spread their knowledge in other places, studying there and then coming
back. You come back the way they trained you, with their whole method. Everything
started to be common, they ways to be taught, to approach the text, the language. In
Latin. )
Digesto was a type of roman text. It was the most important part of the book (the 9). They
found other texts: the code, novels, instituta. Its content was needed to understand the
digesto.
Glossaries weren’t initially lawyers or legal experts. The next generation are going to be
legal experts. Before the glossators there weren’t universities. After them, universities
spread all over the world and so did the law knowledge.
The real legal system of every country in Europe was completely apart from Roman law.
Their legal system was based on local dispositions.
The glossators stuck to the content of the text and respected the rules and
everything, but post glossators are going to pragmatize a little bit and do
monographies or treaties about contract law in roman, procedure law, property. EXM
They did not get rid of the previous method but they were going to study the text differently.
At the center was going to be the glossator's thoughts and in the margins was going to be
the original text.

Digesto was a compilation of different legal dispositions from different times. They
decided to apply these laws to their problems in their society. That was going to be
able to improve the customary dispositions.
Now the text will be a tool to do something else (solve the problems in society). If we see
a treaty or contracts it is gonna be this new era (post glossators).
CANON LAW
The law of the church or the legal dispositions that appeared within the church to apply in
clergy issues.
There were 3 popes. Each of them had the legitimacy and possibilities to be the pope
because canonical procedures were not established yet.
-Reformation of Gregory VII 1073-1085

-Gratian Decretum (1140) or Concordia discordantium canonum
-Raimundo de Penyafort (1234), Decretali Gregorii IX o 'Cinco libros’ (1154-1234)
-Boniface VIII: Liber sextus (1298)
-Clement IV: Liber septumus o Clementinas (1314) Extravagantes of John XXII (1329-1325)
y Extravagantes Comunes (1500)
Canon law was a process to reorganize canonical legal sources which were diverse
and contradictory. This started with Graciano who provided order, and organization.
The others to follow made the same.
Legal studies were divided into canon law and civil law. The canon law was the most
attended because the church provided jobs and positions.
Canon law was heavily polluted since the beginning with Roman law. Starting from the
language.
The political authority of the era was represented by the emperor. There was a struggle
between the pope and the emperor. In those times, popes raised armies.
The center were the pope territories. The struggle was so significant that put what was
happening in Bologna at the center. In Bologna there were a bunch of crazy people that
were doing things with Roman sources and they spread information from these Roman texts
that could solve this struggle. “The will of the emperor is law”…(consilium was no longer
listened to).
When traveling people changed their territory they didn't have the status anymore so they
were easily abused.
They get rid from auxilium and consilium.

One institution (The universities) spread around the world. First was the community and
then the institution. Once this model was established it was going to spread around the
continent. (The teaching, model , same books, language, subjects)
We have a community of foreigners into a strange city with demands and needs of food,
housing, that organize to obtain those goods easily.
Quickly this situation is seen as an opportunity to different entities. For the city of bologna
which easily rejected foreigners. It's an opportunity to make money. The emperor was
having problems with their own things because they were restricted by the local
dispositions. That's why Roman law sounded so useful and interesting in the era.
Providing legal recognition that could improve the situation of the students there and of the
professors also, would make the situation profitable. The emperor provided them with a
constitution that meant legal recognition that meant their own jurisdiction for the scholars that
went to Bologna to study. What does jurisdiction mean ?
They could be judged by the students. They judged each other. By a student figure, the
director, he was a student as well. In their last year, the students would choose a director in
charge of jurisdiction. In charge of negotiating with the city of bologna for better housing and
better conditions. Is an escolar based organization from the bottom.
After the director, the one that selected magisters were the students as well. Many of them
were foreigners so they needed to return to their lands and they needed to get profit from
what they made in Bologna. Degrees appeared. They meant recognition in one specific
subject. Medicine, philosophy, theology, civil law or canon law.
Do you get the degree recognized out of Bologna ? Not really. The church entered the
school organization. A degree signed and stamped by a delegate , the bishop of
Bologna. This figure became completely compulsory for every university. The bishop,
in Bologna. In other universities a member of the church is the one who did that. Nowadays
the king is the one that signs the degrees, due to the state that is giving us this degree,
because he is the head of the state.
This system was common and equal until Protestantism appeared because the
church (the one that sign ) had split.
Models and degrees of universities:
The Bolognan model was so successful, but it was expensive to travel there. The different
local entities quickly became really interested to have something similar to Bologna within
their frontiers. They started copying the bolognan model to create a university. The church,
the king, were interested in having their own college institutions linked to them, not to
Bologna, and to control institutions.
Different models spread all over the country: but same structure.
The city with local taxes is going to be the one that will pay the university.
Legal studies had 3 different degrees:

- Bachelor (allows you to work in front of the court , lawyer )
- License (allows you to teach at a law school )
- PHD (becoming a doctor, the superior degree, it will become compulsory to teach at
a law school, the more sugar more sweet )
How do you get bachelor? What do you study? Subjects
- Roman law. Four years. On a daily basis. For centuries this won't change. And when
it did, in France, it was only one single subject, the 80% of the degree was based as
well in roman law.
- You only needed to attend classes. At the end is a public exam but not difficult to
pass.
- There were a few in class but 10 or 15 was a lot for a big class.
- No women until the 20th century.
How do you get a license ?
- Get the bachelor

- Study
- Four more years. In these years you prepare classes and you help regular teachers
to teach. You participate in legal debates that are promoted by the college to show
your skills with doctors.
- Scholasticism at most.
- Being examined by regular teachers, to show the that you are really prepared for the
big exam. A public one in front of the whole university council and the college seater.
The exam was about the digesto.
How do you get the PHD ?
- They were really expensive. It was an honor degree. Once you get it you could pay
parties. Bull running and bull fighting. Inviting a huge branch of the university to
celebrate. Horses that pick you up from your house (Salamanca).
- Four extra years.
Universities played a key role in spreading roman law all over the world. If you understand
Roman law , national law is child’s play.
There were constitutions (legal dispositions) made by the emperor to protect the scholars,
habita. It offers legal recognition, protection and punishment for those who offend scholars.
The universities had the same handbooks, same way of teaching, same material. But the
problem was that Roman Law is not in full force anywhere. This is a shadow but not strictly
the legal system anywhere. It was not in full force but they used it sometimes. Sentences are
not justified, they had no foundation (in Castilla). The king forbids the judges and lawyers
from using the glossa (a part from Roman Law). There are two exceptions (Juan Andres y
Bartolo ). Bartolo creates legal Bartolism. Without being in full force or valid, common law is
everywhere. For glossators the main authority was Roman law. And for the centuries to
come are going to be the glossators' opinions itself not reading the actual roman law.
LEGAL HIERARCHIES AND INFLUENCE OF IUS COMMUNE
There is a lash between academical law and
Turnpoint between the early Middle Ages to late Middle Ages. The local dispositions and the
feudal system supported by the customary dispositions (made of agreements assumed
by the community, dispositions that fully embraces them and understands them).
Roman law will become the tool to turn the legal system into something else. From a
local feudal customary legal system into a general legal system and customary
without being in full force because it will provide the tools to change it creating the
need of articulating a system in which all of these is more or less organized.
Complexity was the main characteristic of the legal system of the ancient regime.
The judge was exclusively the mouth of the law. Not his will. There is a hierarchy in
legal dispositions that order them. We will see a combination based mainly in practical
issues, it is how they were able to create a system where all of the legal sources already
existed could work together.
How did Roman law influence the peninsula?
There are many Spanish legal systems. Not only one, they have a lot of things in common
and a lot of things different. To solve any problems they always looked at the roman law,
because that is what they studied. That’s why Roman law was so present in every legal
system. But just in the things they were interested in. Authors appeared and authorities that
rejected the interpretation of the system they had. It was made by the parliament.
VALENCIAN LEGAL SYSTEM:

13th century. It’s a new legal system.
-From local customary to general non customary law. When these general dispositions
appeared, local law should be abolished because the new one abolished the old one.
-dispositions passed by the parliament. They were in secondary cases: Furs in case you
can’t find a solution in none of these to solve something.
-dispositions passed by the king. (Royal law)
-common sense. Analogy.
CATALUÑA LEGAL SYSTEM:
Being a very old territory it had such a lot of national dispositions common for all the territory.
They were the ones who really committed to Roman law and weren't afraid of it. They
considered it as a secondary legal source, which is uncommon. They created a body of
legal dispositions that can compete with Roman Law.

-Local law.
-Catalonian Law.
-Roman Law.
-Canon Law.
-Bona raho.
CASTILIAN LEGAL SYSTEM
Things are completely different, because of the institution. To become general there was an
institution. The Parliament. Two different representations: the king and the three
states(nobility, clergy, bourgeoisie). The king will allow everything to transform in his
favor. Castilla was richer than the whole peninsula and politically influential. Fuero
Juzgo(that strongly influenced the king) . (Local governments control taxes, jurisdiction …)
The king had the whole jurisdiction and administered the taxes because he was the one
who appointed local governments, local judges. The administration was managed by the
crown. Serving the crown. That’s why in Castilla the legal system was so influential. The king
could intervene directly in how legal sources are structured in the territory. He made local
dispositions basing them on the liber iudiciorum , fuero juzgo. (Alfonso Xth father:
Fernando III).
-Alcalá Ordinances 1948. Made by the king.

-Pragmáticas and later ordinances.
-Local Law. “El Fuero Real” was in force.
-Las Partidas.
-King.
ARAGON LEGAL SYSTEM

It’s as old as Catalonia.
-Código from Huesca. A compilation of fueros, of their customary dispositions made in

1247, as a way to secure its own legal system. There is a struggle between Aragon and
Catalonia because of the inland territory. The nobility from Aragon was the most
anti-monarchic one until the 16th century. They reunited the traditional legal dispositions to
secure them from the king and try to expand them into the new conquered territories.
-Observances from Justicia Mayor. Public position, always a noble appointed by the state
representing the kingdom, regulated by the Aragonese legal system who was in charge of
protecting the jurisdiction and the respect from every threat possible.
Local Law. Fur from Teruel.
___________________________________________
Al.landalus has vanished and the conquest is finished. Alfonso will continue with the task of
his father (Fernando III), by means of local legal dispositions addressed to the Castilian
territory (frontier villages and villages up north, as his father did). He wanted a common
administration, ruling local authorities, tribunals (appointed by the crown) and taxes. That's a

change for the feudal ways up north and far also from the political and legal autonomy of the
frontier. Is a change from locally centered territories into a common administration for all
the municipalities, ruled by the crown.
Every single decision made by the crown was consulted by the consilium. In Castilla there
were 3 different stages. He applied the local dispositions to 1 and 2 stages that
corresponded to:
, because the 3rd part already had Fuero Juzgo, and why would he apply the new local
dispositions based on the fuero juzgo itself to a territory where fuero juzgo was already in
force. The point was to apply them to territories that didn't have those type of rules.
Fernando III copied from the visigoths, but Alfonso wrote a complete new legal
disposition called Fuero Real. The agenda is the same, the purpose is the same, the
areas are different and the sources are different too. Alfonso reinforced local authorities,
crown courts, crown judges and royal treasure. Collect taxes, rule municipalities, and judge
courts. He’s trying to get rid of the wisemen ( from the 1st stage) and turn them into
judges appointed by the king. For the 1 and 2 stages of Castilia, these new local
dispositions meant a big change.
There was a problem. The nobility didn't want to lose all his privileges. They revolted
against the king. Nobles and knights were threatened by the king, losing positions in benefit
of the crown, so they went to Grenade to maintain their privileges. Alfonso “regretted the
Fuero Real” and he told them to maintain their privileges and their old situation. The Fuero
Real and the new legal dispositions were left aside. But a century later, the same ones that
rejected the Fuero Real are going to ask for it themselves because times will change.
Society evolves, cities in the south prosper. The Fuero Real is going to be one of the most
significant legal dispositions in Castilian territory, the most used and significant text of the
era. Common to everyone and it was romanized, because in this time romanized meant
modernity and evolution.
Nobody can judge anything although it's a judge appointed by the king. They could only
judge by the Fuero Real and if it was necessary for a new law in specific situations you must
go to the king for him to make it. And that law should be put in the Fuero Real as a new law.
Fuero Real got rid of franchises and there was a completely new legal system.
Partidas 1265, is not a local disposition, is a general legal disposition but a strange one.
It's like a compendium of legal dispositions that wants to deal with every legal aspect
of the kingdom because it is going to speak about clergy jurisdiction, kings sovereignty ,
civil law, criminal law, a lot of issues globally and generally. It’s a text in harmony with what’s
happening in legal knowledge in Europe. Formed by roman law, canon law and includes
even glossators opinions. The peculiar thing is that we don’t understand the real purpose
of doing this text.
What was it all about? Unless you went to the university you didn’t know about Baldo,
Bartolo…
From this disposition that could be considered like a legal encyclopedia, it will become the
most significant Castilian source for centuries. From here was taken the preference for

men as the crown. Is called partidas because partidas = chapters, and it has 7. (Not as
digesto in 9)
1-canon law
2- king and church
3- jurisdictions proceedings
4-marriages
5-financial matters, lones, civil law
6- testaments and last will, civil law
7-criminal law, crimes, penalties
It was turned legal by Alfonso’s great grandson.
Partidas were meant to solve claims appeals issues that cannot be solved by the laws. It’s
like a secondary source of the law. To solve parliament's legal dispositions. It was the legal
code for Castilian territory.
The difference between fuero real and partidas is that fuero real was a local legal
disposition and the partidas was, during the modern, a general legal disposition.
From customary to written legal dispositions.
VALENCIAN LEGAL SYSTEM: LESSON 7
At the moment of its birth it was completely new, advanced and modern.
It shows the characteristics of the 13th century. Valencia remained as a Muslim kingdom until
the 13th century. So with a newborn territory a new legal system will appear. In Spain there
was a king and two different territories. Crown of Castilla and crown of aragon. Which grew
differently with different legal organizations and mindsets. They couldn’t grow west because
they had the Castilian kingdom so they had to go south and east to expand their territory.
The first campaign to grow south was promoted by the Catalan part of the crown which was
deeply interested in securing the Mediterranean Sea, because of the trade. They focused on
the Balearic Islands. The Aragonese lords wanted to expand on the inland with territories up
north close to them. This was not against the king but without the king. Then they
established in those territories their costumes and laws. When the campaign in the islands
finished the king returned to the peninsula, faced a reality unwanted. The Aragonese
started their military campaign without his permission.
The politically complicated territory was aragon because it was so strongly feudal that the
influence of the crown in its territory was close to 0. The king wasn’t satisfied with expanding
the territory in favor of the Aragonese territory so he called for a noble reunion of the
parliament. Then the king went down south and profited from a really weak territory,
Valencia, which was a vassal of Aragon, it had to pay taxes not to be invaded. But it ended
up being invaded. They imposed their local legal dispositions , the frontier fueros deeply
based on Fueros de Aragon, for the cities with few population, like Castellón, but when they
reached Valencia, a very populated city and rich, (river Júcar), they couldn’t apply frontier
town chapters, they applied instead local legal disposition but completely different from the
aragonese model upnorth. This local disposition is going to be named: “Costum '' but it’s far
from being customary. In Catalunya were named like that, (the local legal dispositions.)
This will turn into something more general.
Jaume I had family issues that will play a key role. He married twice. The first marriage was
with Leonor de Castilla but he wasn’t so in love. They had a baby, Alfonso. Jaume claimed to
invalidate his first marriage and the pope agreed, his wife returned to Castilla but his son
remained. The second wife was a Hungarian princess, and they had 3-4 sons. The family
issue was that he left Leonor and Alfonso, and his son wanted to disturb him. Alfonso
supported the aspiration of the Aragonese nobility (trade Dominion over the Mediterranean
Sea). Up north territories were not as rich as the south territories.
The city of Morella was conquered by an Aragonese noble and exchanged it with the king,
who had to pay for it and had to wait 2 days to enter the city, until the lord allowed him to get
in. This city was a key because it was at the center of aragon Catalonia and Valencia, it
was also a fortress. The king established a treaty because he knew the importance of it, so
he bought the city. But the noble made him wait.
The people from Valencia were Muslims, the conquerors were Catalans and the Aragonese
became valencian with time. One part of the conquerors was dealing with an uncomfortable
situation with the upnorth population. And here’s the issue. The son was extremely rejected
by his father, surrounded by three brothers …so he reacted and he used his position in his
favor against his father. He offered the aragonese people a solution, he told them that he
can maintain the aragonese way of living in Valencia as well If they support him as a
sovereign. At the time, the son won, civil war, Jaume I accepted, he had no problem in being
the king and his son being the governor of Aragon and Valencia.
Alfonso died before his father. Things changed again. Jaume I took revenge for separating
the territories from aragon.
He created general local legal dispositions for the new territories, and a new kingdom,
the kingdom of Valencia with its own legal system and own administration.
1261 Jaume I raised the institution responsible for local legal dispositions, the Parliament.
Since then, the Valencian territory was born as a political entity of its own. Things were not
easy. The Aragonese were against the new laws in the parliament, so they left it and left the
city. They went to their land because they refused to pass this general local legal disposition,
they wanted the Aragonese local disposition.
The Valencian said that the territories were theirs and the Aragonese said the same.
They gave privilege to the Aragonese people so the valencian legal system could be
approved. And it did.
The valencian legal system appeared as a new one, in 1261. The furs appeared after
the Parliament was made.

The fueros meant privilege. And some of them were written out of the parliament.
(Contrato y fueros de frontera)
The general dispositions that were passed by the parliament increased every century. The
role of the crown increased with time being able to approve general legal dispositions
based on its sovereignty.
There was a whole legal doctrine that will study and help to develop the valencia legal
system made by valencian lawyers. It was like any other European legal doctrine, trying to fill
the gaps in the legal system interpreting it.
There were many different legal sources occupying the same place legally.
Local legal dispositions with the peculiarity with this division between Aragonese local legal
dispositions and Valencian dispositions. The dispositions of the kingdom (Furs i Actes de
Cort )
Privilege is a way of granting rights, so a privilege is a legal disposition.
This legal system provided full support for the kingdom's administration and organization, it
articulated institutions to rule the kingdom (here and abroad).
There were different spheres and representations of the elements involving the kingdom .
The kingdom was a “body”. In their mindset everything forms part of the body.
Legal dispositions of the parliament are the top or the whole system. Even for the
crown dispositions, and is because it collides the two representations of the parts, the king
and the kingdom. The king is formed by the three states (clergy, nobility and the cities).
Parliament was so significant. It’s so important being part of it.

- This political entity that the kingdom embraces is going to be everything by one
institution, la generalitat. (Municipalities, then will grow into provinces and then
into regional autonomies.)
- Guilds
- Consulate
In the conquers there were only two territorial divisions, valencia and Orihuela, very
disproportioned. That's why the bigger one is going to be divided in three. Xativa,
Valencia, Castellón. Marked by natural frontiers. They had governors for each
territory, appointed by the king.
The crown of Aragon was a peculiar organization because it had one king and two
kingdoms initially, then it ended up having 6 kingdoms, unlike Castilla that had a king and a
kingdom. Aragón, Balearic Islands, Valencia, Cerdeña, Sicilia, Nápoles, all of them with their
own parliament and their own legal system. Because of this reality, with a crown so diverse,
where is the king? In the capital, in Nápoles. They created the viceroys. There’s one king
that could be anywhere but any other territory had this impersonator of the king, they used
the word “alter nos” otro yo, normally this viceroy that represents the king in a territory is
usually a higher noble.
In the territory we also have, the audience, a judiciary institution here in Valencia for the
whole kingdom appointed by the king. It is a concealing advisor. It’s like a court formed by
lawyers or judges and they worked as legal advisors, and ofc as judges or their
professions , not for the king, but for the viceroy.
Above them, working the same way, we have the general Supreme Court of the crown ,
which is not helping the viceroy but helping the king and is located in the capital where the
kingdom is.
The royal heritage is the royal treasury in valencia. Real patrimonio.
The Valencian parliament, 1261 when it started, was formed by three states, nobility, clergy
and realms.(cities that belong to the king as a lord) segorbe it belonged to the church so it
wasn’t a realm, or Elche and denia belonged to a marquese so they weren't realms.
It only reunites when the king calls. And only the king can call it. Members of the church, of
the nobility and of the realms. How did they do it? By letter. To lords that have a manor in
valencia. Knights or lords. ( This was in the case of the noble branch) .
How did they call for the church? They used the hierarchy, they called the archbishop.
The other branch, the third state, was for cities that belonged to a realm, to the king, and
there was only one who had the privilege to be called to the parliament.
What do you call the parliament for? For the common good of the kingdom to preserve
the kingdom and the vassals. But this common good is developed in different tasks:
-PASSING GENERAL LEGAL DISPOSITIONS (furs), not only.,
-ECONOMIC MATTERS
-PASSING THE BUDGET

-RENEWING THE SYSTEM OF THE FEUDAL FRAME
The kingdom will pay Taxes put by the parliament.

Pactism: pact between the kingdom, who will serve, and the king, who will respect. Feudal
mindset. to balance the power between the nobles and the monarchy
This negotiation is called legal or political pactism, because it is like all the different phases
of the pact between the kingdom and the king. Parliaments normally finish properly with an
agreement. Finishing it without an agreement is something exceptional.
Legal dispositions passed by the parliament are divided in two, the main ones:
-Furs for the three states plus the king
-Actes de Cort for one or two states only. Privileged.
Both of them are general, as for everyone within the kingdom, the difference is that not
every disposition is addressed to everyone.
Contrafur: illegalities within the parliament, foral law violation, against generalitat, against
state.
As long as the modern age starts passing, the parliament starts losing its influence.
Another institution will appear, in charge of fulfilling a task* that the parliament can’t.
Because the parliament only lasted 3-4 months. The task* was: collecting the budget. The
donation was so huge that the parliament couldn’t manage it due to its short period in
charge. There was a need for someone in charge of collecting it:
- la generalitat, which inherited the representation from the parliament and the
kingdom.
- These taxes sustained the general, the whole kingdom. That’s why it is called
GENERALITAT Valenciana(it appeared in 1418). They are indirect taxes. (The
nobility and the king didn't pay taxes.)
ELECTS & GENERALITAT
Diputats of the Generalitat or Junta de Electos:The kingdom representatives are in charge of

collecting the donation using these taxes, indirect taxes, including common things like :
cards, clothes, salt, ice, maritime defense... (From the generalitat)
During the late Middle Ages common administration appeared outside the kingdom
(generalitat). It surpassed private jurisdictions, privileges,… its global (within the valencian
kingdom). It 's general. And because of it, it's going to turn into something else.
The generalitat will become a representation of the state outside the parliament.
It had 6 diputates, two for each state. 3 claravis, each for one state. 3 administrators each for
one state, 6 accountants, two for each state. They inherited the representation of the
Parliament.
_______________
SUPREME COURT OF THE CROWN OF ARAGON
If you are a peasant your lord represents you. In their mindsets, each and every single
person is represented by the lord.
For the administration of the king there will be another institution, the audience, it was a
council within the territory that is going to fulfill two different duties which are:
-applying supreme jurisdiction of the king.
-counseling the viceroys.
-advises the king. (Only the Supreme Court of the crown of aragon)
Only Valencian people could apply to these positions. Once you are a member of the
Supreme Court you die as a member of the Supreme Court.
ROYAL HERITAGE
The king was a lord. For every realm in Valencia there was money collected by the king as
his lord. To collect them there was the royal heritage. The head of this institution was a baile
general.
LOCAL GOVERNMENTS IN VALENCIA
The most important duty was providing services. Providing FOOD. Supervising the market
and making sure that every product gets into the market. Taking care of it. From avoiding
sickness, plagues…taking care of the streets, walls, higiene of the society.
As society advances, municipalities develop more and more. They have a deficit of many
goods. Cereal being the main one. They collect a lot of taxes to provide their territory with
cereals. Also meat.
The mustassaf was going to be in charge of everything related to the market, providing
food, etc…
These municipalities are going to receive jurisdiction. They were provided with a court
to use it. It’s not linked to the judiciary branch, it is local and belongs to the municipality.
Zalmedina : It dealt with minor crimes. Not huge penalties. It was complementary of the
“justicia de Aragón”.
It will also grow really quick because more officials are needed because the conquest is
happening in the 13th century, time of evolution. These reforms are going to appear in the
new public positions which are called jurados, which aren’t related to jurisdiction, (this
could be similar to our present concejales).
There was no mayor. “Jurates en cap” the main positions.

Initially they (the jurados, who were 4) were appointed by the king but they are going to be
renewed every year. And initially they were going to appoint their successors.

The problem is that they were going to choose their families , por enchufe. All the ones that
aspired to be in front of the municipalities and couldn’t be because of this enchufe, had
swords and used them. It finished with death. The king's delegate will make lists of
names for the king to select. This only happened in Valencia. There was a big
disproportion among the rest of the valencian kingdom. In the small towns they did it by
luck (insaculacion), but to enroll in that election you needed to fulfill some requirements.
Which were ,
1.having an income without working (they were not nobles initially).
2.you are going to be reviewed by the king's officials (see your company, dark
business, complicated family issues…).
-In Valencia, the kingdom will give the privilege to the jurados in exchange for money.
_______
Trade and consulates
Trade law, we’re speaking of a higher scale of trade. SEA TRADE.

Big amounts of cargo. The sea was the only mood of carrying those big cargoes.
The flourishing of trade law will happen in a time when general legal dispositions are starting
to appear, far from being international. They are strictly focused in one particular kingdom or
territory, the international trade was out of the equation.
Who would have been responsible for paying for the damages and under which legal
conditions? (there weren't because they were local) PROBLEM.
To backup these operations it was a need to invest a lot of money. Besides you needed to
pay rights, taxes for the cargo. Trade law will appear to solve all these questions. It’s going
to start in a very reduced area and it's going to spread over the Mediterranean area. It
will evolve in the time in which the Mediterranean Sea is going to be more and more
controlled by one territory. THE CROWN OF ARAGON. We will be talking about the trade
between Mallorca, Barcelona and Valencia, a triangle.
The responsibility of making this trade law was held by customary dispositions. (One of
them). The idea of trade was providing them with legal dispositions accepted by everyone to
secure their investment. So they started picking dispositions from everywhere. To achieve
this they had to decide how to apply it. As quickly as they could. Lawyers were excluded
from this quick process of deciding how to apply the trade law, because they would slow
down the process. They decided to create a special court for trade without no one else
involved. The church had one, the nobles had one, municipalities had one… this was
normal, just another specific court. You register at the consulate and you assume that you
are a trader and this is your activity and you accept the rules of the consulate. So, to
participate in trade you needed to sign up in the consulate. Consulates existed before,
but transformed into something else the trade appeared. The traders are the ones that are
going to solve their own problems.
Trade is like an independent jurisdiction organized by traders itelfs. The crown is going to
take huge benefits from it because there was a huge taxation on trade. So the crown
supported the trade, institutionalized it and regulated it. But let traders do it in their way
respecting their decisions.

El llibre del consolat de la mar. The book that included and compiled the rules that
made trade possible. (THE TRIANGLE , MEDITERRANEAN SEA)
But what about Cantabria, crown of Castilla and Atlantic sea? In the 14th century, earth
traders also decided to enroll in the sea trade. But we are talking about traders, because the
manufacturers had guilds.
Guilds
• Mutual aid
• Royal Privileges: ordinances and bylaws
• Common Box
• Own headquarters
• Organization: General Meeting, Mayoral or Pro Hombres; Reduced Council.
• Control of production and markets, access to trades, salaries and working conditions all
alone.
LESSON 8 : ABSOLUTE MONARCHY
THE MODERN AGE / historical introduction

The frontiers of this historical time was the finishing of the last remaining of the Roman
Empire, the eastern Roman Empire. Conquered by the Ottoman Empire, Muslims. It
ended with the liberal revolution, the French Revolution. This from an European vision.
From the Spanish vision, from the conquest of the kingdom of Granada 1492 to the
constitution of Cadiz 1812 and the marriage of ferran and Isabel. To reunite the crowns.
Which is going to have a great impact. Because it will imply how the crown was going to be
ruled and organized.
ARMY AND BUREAUCRACY
The monarch doesn't depend on the nobility anymore, he now has his own army.
There was bureaucracy and above all the “hacienda” which was going to enforce the
power and the spendings.
-The characteristics of this period:

- Societies had changed.
- Muslim presence has almost vanished.
- The remains are only the kingdom of Granada.
- Discovery of America. (Which shouldn’t be called like that bc it was already there)
This attempt to reunite the crowns is going to be directed by the crown of Aragon and
Castilla. Portugal was also included. The first son of Isabel and Fernando was going to
marry a Portuguese princess. Isabel and Fernando were not the kings of their territories but
the heirs. Each territory had its own organization, institutions and legal system.
Although they wanted to be reunited none of the parts wanted to accept the other one’s
way of ruling. Each of them, after the marriage, were going to be the kings of their own
territory. Fernando, King of Aragon. Isabel, queen of Castilla. Separately.
Also by the geographical situation, Italy and Spain, the reunion of these two, in a continent
still divided in many different kingdoms, turned the peninsula into something like a
superpower. Having in mind that the UK was not yet together.
Spain became one of the most significant and important points of the continent. Because it
was also close to Italy, where the POPE lived.
Both territories (Aragon and Castilla), didn’t have a common army, or a common currency,
money … They were reunited but not assimilated. Each of the territories was going by their
own. THIS WAS THE PLAN OF MARRYING THEM.
After marrying, after 10 years. In the wait of an heir. This plan of reuniting territories. They
were going to have a huge amount of children. The first son, Juan, was going to marry
the Portuguese princess. In those times, there wasn’t divorce, but people died a lot (Juan
died, the princess died and their heir died as well, they all died ). In those times, it was a
common habit they separated them to prevent them from arguing for the throne or
conspiring. A daughter of them, Catalina was married to the heir of the English crown
(Enrique VIII).
THE CONSEQUENCES OF THE REUNION : (F ❤️I)

-They are going to be “reunited but legally separated.”
-The flags were concepts. In the union they carried the symbols of both dynasties.
Things started to change quickly.

The Castilian kingdom noticed the sea. By Portugal. Who started navigating the sea before
everyone. They were the last empire to fall (Portuguese empire).
They wanted to follow the steps of their Portuguese neighbor and they reached something
that had a key. The Canary Islands. So the role of the territories started to change. On their
way to America, they stopped in the Canary Islands. Which will be a key thing in the future to
the discovery of America.
The kingdom of Grenade was the last feudal army of the era, and was conquered to expel
the Muslims from the peninsula definitively and integrate the whole territory into the Castilian
kingdom.
Colón got to America, and the Castilian kingdom will become a completely different
thing.
The third child, their daughter, Juana la loca, was married to this Hamburg Felipe I de
Castilla, Austrian,but Flemish because he was living there, in Flanders. Their sons and
daughters started to die. Unexpectedly Juana became the heir. As Isabell died soon, Juana
la loca became the queen of Castilla. In a legal way without traisoning no one, her father
returned to his kingdom, so he secluded her not to damage their plan of reuniting the
crowns. Because without Isabel, just the crown of aragon is un 0 a la izquierda, so that
would mean that now the daughter will have more power than Fernando, so that’s why
he secluded her. Fernando got sad and married again, with a French princess.
But Felipe the handsome (Juana la loca’s husband) , is expecting to be a king as his wife.
He came to the peninsula. There was a political struggle. What happened?
- Felipe was weak, and he died really soon. In some months after his arrival
Juana was an obstacle, so they called her crazy and imprisoned her in a palace for the rest
of her life. Castilian nobles and Fernando took advantage of Juana.
Castilla was governed during this time by nobles of Castilla and Fernando.
Carlos I (son of Juana) inherited the empire. (Castilian) Fernando continued with the
Aragonese part.
Fernando’s new French wife was pregnant, so the Crown of Aragon had an heir. The son
died. This line finishes.
Carlos I will divide his possessions , Castilla to his son FELIPE II and Ferdinand the
Habsburg domains from his father the Flemish Austrian.

02/02/23
THE FEUDAL MANORS
-The monarch intervenes: he has jurisdiction over the conflicts between lords and their
vassals. The manors changed but they were maintained during this modern age and the
monarchs didn't do anything decisive to change the existing structure.
-The manors in the peninsula : the nobility continues having power over the vassals but
there is a transformation with the passage of time. In Aragon there was not a big change but
in Castilla however the transformation was great.
Now the lord apart from charging the mills, ovens … he also charged the land, the
houses. The expulsion of the moriscos from the peninsula meant a weakness for the manor
system. Unlike Castilla, in Valencia (ARAGON KINGDOM) the lands were not
amortized. The peasants still had to pay to the nobility and of course to pay the tenth to the
church.
In Castilla : the vassals can now sell their lands and abandon the manor, and the
lords have achieved to acquire them and lease them. The land is amortized in the hands
of the church or linked by eldership to the nobility. The lords have jurisdiction over their
vassals and pay no taxes therefore there is a big inequality between ecclesiastical property
and noblemens property in relation to the peasant or burgeoisy property.
The monarchy respects the nobility and monasteries while burning with huge taxes
the peasants and bourgeois.
There is one thing that is going to change, and is everything related with the feudal
relationships, mainly the lordy relationships. Owning land, jurisdictional lands, closed and
privileged property is not going to change. Vassalage relationships have been vanishing but
lordy relationships remained, with changes but they remained.
The privilege of owning land, jurisdiction (being able to judge by yourself with your
judges in your territory, articulating households with your authorities…), they are going to
remain intact.
The changes are going to change in terms of getting economical profits from harvesting,
cropping of the lands. The only thing that affects this jurisdictional rights is TIME. But
legally remain intact.
How is this property privilege going to increase exponentially? It is going to be very

legally protected for being perpetual in time. By legal institutions approved to do
so, for both church and nobility. (forbade the church to sell, divide, mortgage or charge with
anything these lands)

Disentitlement: It is the legal phenomenon that happened during th liberal revolution and
meant a kind of action realized by the state that consisted in getting the property from the
church to become a state property.
Why was this process necessary and significant ? They wanted to grow because the land
was huge. How did it become so huge ? Initially church properties cannot be sold because
they were devoted to God's will. After that, it appeared the legal protection of entitlement that
forbade the church to sell, divide, mortgage or charge with anything these lands. So, the
state’s property increased exponentially.
The nobility enjoyed the same kind of protections for their owning with a different
name, their goods were not entitled, they were bonded (mayorazgo) , which worked
exactly the same. Once a piece of land enters into nobility property it cannot be sold,
divided, mortgaged,etc….
Nobility and clergy properties during the whole modern age expanded a lot from the Middle
Ages.
The way to preserve the privilege was absolutism, once absolutism disappeared all
the privileges disappeared.
How did mayorazgos influence the growth of these privileges ? This idea of mayorazgo is to
guarantee the survival of the nobility as a reward that they were the ones that served the
king so they must have their economical security guaranteed…to guarantee this linkage,
their goods were protected by the law.
How does it work ? A family has his land protected by the law (cannot be sold,
mortgaged…), but when they married or linked to another family, their lands were increasing
constantly. Generation after generation. This growth is going to happen during the
modern age, the whole modern age is devoted to make this privilege situation even
more privileged. The only things that changed were the things related to economic
profit and the way to get them.
The legal way to take the money from the land changed. Depending on the territory those
changes are going to be more or less significant.
The more significant were in the territories that were poor, cereal, (you needed more and
more and more land to make it profitable )in other territories devoted to harvesting more
profitable things, (richer) like in Valencia changes were less significant.
Exam question possible : what are the main traits of the legal system in the medieval
times ? Early Middle Ages
- customary legal dispositions
-local law
-lordy and vassalage relationships based
- liber iudiciorum

What are the characteristics of the legal system in the late Middle Ages ?
Osea,Modern age.
-IUS COMMUNE (the recovering or revival of the roman law sources and everything
that followed alongside the birth of canonical law or canon law in a time in which the
whole continent was still catholic, Protestantism didn’t arrive yet, they enjoy the same
church.)
-GENERAL legal dispositions passed by the parliament. For the whole territory.
-Trade law
What are the changes from one age to the other?

-The arrival of the Ius commune didn't mean abolishing customary law or local law.
Local legal dispositions are going to still exist swallowed by general legal
dispositions but not abolished or forgotten. Just diminished.
The main significant change :are the changes linked to the main legal role of the new
era (absolutism) in the legal system. Which actor is this? The king. It's the whole
administration. An administration that was unknown previously and consolidated
during the modern age, without them we cannot understand this age, because it is the
way of absolutism. Without the king there are no general legal dispositions.
THE POSSIBILITY THAT TURNED THE KING INTO THE MAIN SOURCE OF THE LAW.
THIS IS THE MAIN CHANGE OF THE MODERN AGE.
The new role a legal actor is going to have in the whole process of creating legal
dispositions. This new role is the role of the king of the monarchy, in terms of the head of a
whole complete and fully developed administration that relies on him and it's going to be
present everywhere, territorially and competentiality speaking.
He is going to have a full administration in charge of applying jurisdiction all over the
territory. This is going to have a huge impact in the legal system.
New element to the legal system : legal dispositions passed by his administration. Which are
going to get profit from the realities of the modern age, like general legal dispositions.
The king’s administration is capable of passing and creating legal dispositions all by
itself without the parliament.
New element: audiencias and chanceries. Reality still has a strong influence in the legal
system. Local general dispositions are the same because they were preserved. The problem
for the king is that older dynamics cannot be changed. No one abolishes old legal
dispositions, they are just going to be less and less used and then forgotten.
The sources of the law were diverse and flowed between them in a natural way.
-General legal dispositions passed by the state's administration headed by the king.
-new types of legal dispositions.
The parliament without the king, cannot be reunited, and without the king's approval the legal
dispositions cannot be passed.
Outside the parliament, there are legal administrations that do it by themselves without the
need of the king's approval (because they represent the king ). All of them are going to add
and pass new legal dispositions.
Every territory is going to have a council, its parliament, its chancery and its viceroy,
and must be ruled differently. Councils were territorial because of the aggregation of
territories. Because of political reasons, the whole territory of Spain ended up together. And
the king had to deal with all the different councils, parliaments, chanceries, viceroys…
Viceroy represents the king in every territory. The king lived in one territory of Spain,
there was not a viceroy of course because there was the king. Every territory needed a
“king” so that's why there were viceroys.
Councils exist surrounding the king, they are in Madrid, the council of Italy Portugal… are in
Madrid. The supremes council of Aragon formed by aragonese catalan valenciano and
Sardinian people,( Sardinian nobility is valenciano nobility mainly,). The council of Aragon
was considered Aragonese territory. But the administration without the king must be present
also in this territory= viceroys and chanceries. Chanceries and the supreme councils
exercised two inferential functions, jurisdictional functions (theory were judges) and
advising and counseling tasks.
The legal dispositions passed by the supreme council of Castilla have influence only there,
not in aragon nor other territory that is not Castilla.
There were territorial divisions for the need of the system. So these legal dispositions must
be ordered with a hierarchy and sense between them. Otherwise it would be impossible to
know which one to use.
This order is dependent on the institution responsible for passing it. The higher the
institution the more significant the disposition. Territorial element and institutional
element, BUT in reality we see how this jererachy is so flexible because there were many
exceptions.
1. King
2. Council
3. Chancelleries
4. Viceroy
Our legal system is created under the aim of being the most simple possible to avoid the
complexity and diversity of this past legal system.
LEGAL DISPOSITIONS . EFFECTIVENESS

They are passed and they are really difficult to be known. Part of the privilege is
avoiding legal dispositions for themselves.
Incomplete :
-Law Oblivion.

-Courts free will.
-Powerful’s avoidance.
-Local dispositions Prevail.
-Customary contra legem.
No effectiveness:
-Ius Commune.
-Law Quitting.
-Ways of controlling legal dispositions.
Criminal nobles. The king has no army. Absolutism relies on not being able to be judged by
doing so. The king's administration passed a lot of legal dispositions, but no one
studied them because at universities students only did Roman law. That's why this
legal system was so problematic to be applied. If they were judges they would judge
therefore using Ius commune. They have not studied the king's dispositions. They only
solve those problems, not justify them.
Customary dispositions still exist.
There is a hierarchy between the institutions surrounding the king. The huge amount of legal
dispositions passed by this institutions is far from being secure or efficient. Because of the
conditions of the era, (knowledge of legal dispositions … the ways to know them are still very
limited, the way the legal system is being conformed by centuries, the shadow of Ius
commune is far from disappearing, ). The courts must not justify the sentences, they
only resolve. These institutions are unable to control how the courts are applying them.
The heritage prevails in privilege and legal positions separated and completely franchised for
the privilege (nobility and church). They can avoid many of the consequences of the legal
dispositions passed for the whole territory bc of their position.
Lords are lords of jurisdiction they own. Which means that they own courts within your
territory, alongside this comes a specific jurisdiction procedure (you cannot be judged or
prosecuted or charged the same way as the rest).
Nobility is judged by nobility.
The new legal dispositions cannot abolish legally speaking the old legal dispositions. It is
going to be reality and economic and social change who are going to abolish
PRACTICALLY the local legal dispositions that are completely useless. Until then local legal
dispositions prevail.
HISPANIC MONARCHY -modern age law
Absolute, global bc it will become an empire in the middle age,..but there is a situation that is
going to create a lot of problems within the legal system. The nature of how the kingdom
was formed itself. All of those institutions:

were controlled by the king and the parliament. Legal dispositions passed by the
monarchy(king) will still exist during the modern age. We must also foresee that there are
many spanish parliaments creating different realities within the same king but different
parliaments and different spanish territories. Theoretically the parliament had more influence
than the councils.
The Habsburg family will inherit the Spanish crown, they only conquered the Americas and
Philippines.
Charles I
Philip II
Philip III
Philip IV
Charles the II
All of the dispositions passed by these institutions cannot contradict the dispositions
passed by the parliament. This tension includes the kingdom of Castilla also.
What happens next is that the kingdom of Castilla will create another tension(within the
tension between the king and the parliament.) in Castilla was diminished by the monarchy
really soon, at the beginning of the modern age. The tension that happened between the
Castilian parliament and the king disappeared when the Austrians entered into the sea. It

became a territorial tension when the king who lived in Castilla ruled Castilla by his own
terms and wasn’t unable to rule other territories like he ruled Castilla.
This tension (what legal dispositions had primacy over others, who was more important
between council, parliament, chanceries,secretaries…WHO WAS THE MAIN LEGAL
SOURCE. THE KING OR THE PARLIAMENT..)occurs in each and every parliament,
there is no such thing like a spanish parliament there are many.
Bc of this diversity, and the problem could be faced differently depending on the
territory. The main significant difference comes from the kingdom of Castilla. (The
most populated, the most large,America is Castilla…) and also because it is going to
be the territory in which the king lives, ((((Philip the II created Madrid)))). In Castilla the
king's dispositions prevailed over the parliaments. Parliament will be diminished by the
king. This is going to have a huge impact. The king rules this territory differently than the
others. In Castilla the main legal source is the king, in the rest of Spain the main legal source
was the parliament of each territory.
There was a first revolt in Castilla, los comuneros they wanted a spanish king.
The tension comes that the king can rule apart that territory more than others, the other
territories resisted an expansion of what was happening in Castilla because they didn't want
to be ruled like Castilla. The Castilian territory is going to be TAXED to sustain the
whole empire that is going to turn into poverty really soon.
This was not happening in the other territories because if the king would try to do that the
parliaments wouldn’t agree. Only the nobles of Castilla were going to be rich, but the rest
suffered taxes, famine, pests…the Americas were drained of silver that went to Europe to
sustain the empire. Castilian populations were poor to the bone. Castilian was draining all its
resources to sustain the empire. The other territories created legal ways to make their own
legal systems prevail.
The idea of the king was to extend the Castilian way of ruling to the whole territories
because of the lack of resources in Castilla bc it was drained to the bone, RESTRICTING
PARLIAMENTS, PRIVILEGES…the other territories also pay taxes and are forced to the
military too, but IN THEIR OWN TERMS not in the king's terms.
To avoid the presence of the king in the political administration, the rest of the territory
created a legal control mechanism to restrict the legal dispositions passed by the king and
its administration in opposition to the parliament's administration trying to make a balance
between the king and the kingdom. What is ruled by the parliament cannot be ruled by the
king. Every new task must be passed by the parliament. (They were feudal parliaments ruled
by privileged people, they were fighting to keep their privilege, they were not fighting for
liberty). In those territories the parliament without the king is nothing, let's not be wrong. But
these legal control mechanisms were approved by the king because he needed money.
Which were those control mechanisms ? Procedures are legally regulated to filter what's
coming from the king's administration that cannot surpass or contradict what has been
already passed by the parliament. To get economic profit from these territories, the crown
was forced to call a parliament. And during these parliaments in exchange for money or
services, the territories were able to get guarantees from the king to the legal system. These
guarantees did not end with the tension.
NO ONE wants to diminish the sovereignty of the king. No one denies his figure or his
possibility of acting in an extraordinary way, but there were LIMITS. The most significant limit
is taxation. The monarchy was so powerful and as a tax cannot be imposed the king
demanded voluntary contribution to the monarchy to the privilege, and the privilege comes to
you, with the money of their manors or territories. Legally there is no tax but in reality there
was “voluntary”. The privileged want to contribute but they are aware they can’t push their
territories to one limit. If not there could be popular revolts for taxation, poor years, bad
harvest…
In any legal system of the peninsula there were mechanisms that as long as the parliaments
existed were established to prevent this privilege, jurisdiction from invasion, and legal
disputes , since the beginning.
In Castilla there was a legal control mechanism: one of villamarin s favorites: obeying but
not fulfilling. They recognize everything but not fulfill it. This was ineffective in Castilla. But
it had a second life in America. The whole legal system of Castilla was relocated as a whole
in America exactly the same. For the chanceries of America the meaning of we are going to obey but
not to fulfill was different because of the Atlantic Ocean. The king could not do any pressure because there
was a huge distance.
OVERLETTER: the document that said if the territories passed a disposition or not.
(Vasc territory and navarra)
For the other territories, NAVARRA, the chancery was in charge of reviewing the legal
disposition, but the king was the one who elected the members of the chanceries, so
they are going to accept yes or yes because they are also aware of their privileges
given by the king, so they “collaborated”. So if they didn’t agree with the dispositions they
would try to negotiate friendly with the king.
VASC TERRITORY : who belonged to Castilla but had an specific legal status, they were
considered as three different territories, Guipúzcoa, Álava and Vizcaya.
But they had different parliaments and political instances. Because of this in many of
them we are going to see a mixture of Castilian obey and not fulfill and the Navarrese one.
ARAGONESE TERRITORIES there was an institution (justicia mayor the aragon ) which is
an official not appointed by the king but by the states normally by a noble) who is in
charge of it. Jurisdictional mechanism : it works as a court. Every time a legal disposition
passed by the king was denounced by the ones affected to it to a court the higher justice of
aragon could estruct this procedure and decide on it if it is accepted or not saying that the
legal disposition was against the aragonese system of illegal. There was no overletter
here. Influence of the justicia mayor: the aragonese people could be judged there the
justiciero mayor was asked to deliver him and the guilty was going to be judged by the
aragonese jurisdiction. In 1592 this institution was completely reviewed and he could be
quitted by the king.
VALENCIA: this reviewing of the legal dispositions of the king was made during parliaments,
to negotiate the service to the king. So they put some conditions on the king , if he wanted
to get their money the king had to fulfill that.

CATALUÑA: there was a whole legal dispositions , a “Constitution” (Poc valdría)
Jurisdiction nobles could denounce the legal dispositions to the constitution.
LESSON 10 : MODERN LEGAL COMPILATIONS
The great innovation the modern age is going to bring at least for the spanish legal systems
is the compilations. It is reuniting and reordering something that already existed without
changing anything.
Why did They appear? The amount of legal dispositions were unaffordable if they were not
compiled, there were so many that they needed a tool to know about them. This tool was
the compilation. They were written by hand. There were no printing machines. There were
many compilations for every spanish regime, one compilation to Aragon, one to Cataluña,
one to valencia…
They came in the modern age when printing machines appeared in 1472 the first one. There
were public and private compilations.
Compilations “ended” with the arrival of the codes (first enlightenment codes based on
absolutism, and then the liberal codes, being the first one the civil code of Napoleón). For us
1819 the trade code, 1822 criminal code, 1889 civil code.
A private compilation is made normally by a lawyer who wants to get money. He is only
compiling them, not doing anything new, his point is that other lawyers buy them for them to
work.
The parliament was aware of the usefulness of these compilations and did official
compilations, public ones.
The compilation has no legal value apart from the dispositions included in it. (Which already
existed).
The parliament and the king were the two main legal sources of the era.
Problems: law oblivion, different versions of the same legal disposition bc they were
handwritten and there could be variations. Not adding new elements but trying to find the
proper version. (Effectiveness)
Types of compilations:
-private or official.
-chronological or systematic.
-repertories or indexes.
THE LEGAL SYSTEM OF THE AMERICAS

Right for Conquest (Theologians and Jourists)
Its system was far from being new, only the territory was new, but the way the order and rules were
structured there, has already happened.

- no one knew america existed. What they found there was unexpected. That's why they called
them Indians, because what they expected was to get into India to trade and establish free
trade ports. Exactly how the Castilian kingdom did with the Portuguese. Portugal and the
Castilian kingdom had some trouble before. That's why the steps they are going to take to
secure their activity in America was already taken before, that’s why the issue of legal
dispositions regarding the establishment of these virgin territories, was already done before.
From the spanish point of view there is a territory which is completely key to the arrival to the
americas, logistical reasons and legal reasons. The Canary Islands. Those islands are very
similar to america. Apart from these visual connections there were legal connections. From
the conquering of the Canary Islands, the conqueror was a private (that’s why there weren't
legal dispositions) campaign, individual for the canary island and America addressed to the
crown to guarantee to get the legal recognition about what we are going to do there. They
invested if the king recognized their rights when they got there, in exchange of these
recognition I’m going to pay. These documents signed by the king and validated by the
administration were named chapters. (Capitulaciones) which gave new territories and new
taxes. But what is happening internationally ? The Portuguese were the owners of the Atlantic
sea. The last empire to fall was the Portuguese empire 1975. THE STRUGGLE BETWEEN
THE PORTUGUESE AND the Castilian already existed because of the Atlantic sea. How do
we solve these problems and how do we recognize each other's territories? By international
treaties, between all of them. Drawing lines on the globe. I will recognize you this if you
recognize me this. The Canary Islands were conquered, repopulated and established using
the same ways as the Americas. The difference between Canary Islands and america was
that the Canary Islands were inhabited and POOR, but America was rich, fertile and
populated. There was one little problem: there were people living there. Why was this a
problem? Their condition. 1st difference and the most significant one: they are PAGANS. For
the Christian people of the era bc of the color of their skin, African people were considered
eretic bc they rejected the faith. If they were Muslims no problem they could turn them into
slaves, but the Americas didn’t know about faith, they haven’t rejected it. They were very
undeveloped, they lived in tents, they didnt know how to write…so they decided to turn them
into slaves, to do their hard jobs going to a mine, and extracting resources from their land.
Now the Indians worked for the colonizers. In Americas there weren't lords so it could be lordy
relationships as in the feudal frame so, they called it enfiteusis, they got the essence of
manors and relocated into the Americas with a new name, ENCOMIENDAS, in which there is
a responsible like a lord without being one, and the Indians had to work for them in exchange
for the “lords” giving them civilizations, Christianity, wear clothes, marriage…initially this was
easy. (The Caribbean, cuba, donde llego colon primero, they were peaceful not like the
Aztecs with warriors bla bla, they were peacefully living in cuba)
- PAPACY BULLS: 1479 regarding the Canary Islands and the Castilian presence in the
Islands. El tratado de alcaçovas. Already happened. The impact of the Americas was much
bigger than Portugal and everything.
- What Colon did was something that has been already done. Colon got there with a purpose, a
purpose that appears in CAPITULACIONES DE SANTA FE, a document which is a copy of
the capitulaciones previously made for the Canary Islands in which the crown recognizes a
position to colon and his family in exchange of paying taxes, establishing in the name of
the king. They both need one and the other, the king needed colon and colon needed the
king. They were in the search of money, not to extend Christianity or culture, MONEY.
Surrounding this document, for colon and company that was a contract which is
unbreakable, but for the king when America is so huge these chapters are pure mercy
and graceful, and mercy can be denied. He could break it, so Colon died in poverty and was
prosecuted by the king. But it was for good reasons the fact of abusing Colon. The
conquerors kill between themselves for money and power and territories and jurisdiction and

influence and political purposes, that’s why the crown intervenes. Treason, murders, battles,
factions, rebellions …How is the king going to intervene ? ….
- Pizarro and Gonzalo were the conquerors of PERU , of the Aztec empire.
Bulls purpose
-Sufficient legal title, external, enforceable against third parties and international.
- Initially no one questions its strength and effectiveness.
- The lands discovered are granted to the kings "of Castile".
- The monarchs have the sovereignty, but not the ownership of the land :
The Crown benefits from “regalías” (mines or stagnant rents) and from the ownership of property
shown to be vacant and unused.
The land was given by the pope, the soberanía was recognized by it, the pope was Alexander VI
(valencian) the one who signed the bull that made our university possible.
Problems started to arise. Related to the way the presence in America by the Castilian was being
done. They relocated the feudal system to the new reality using this institution (feudalism) which was
la encomienda. La encomienda was conceived like a tool contract that favored the Dominion over the
Americas in exchange of the teachings in habits, civilization, Christianity and as a reward they had to
work. But they weren't slaves. The natives of America obv didn’t like all of this.
Theoretically encomiendas was like a fair institution that allowed the Castilian population to be
there in order to improve those societies and spread christianity and eliminate cannibalism,
paganism, in exchange they were getting what they really wanted, making money. The natives
were not legally slaves, but in practice they were OBV.
After two decades there, problems started to appear with the denunciation of many Castilian
people who were there,which became terrified of what they were seeing. Which was cruelty,
massacre, slavery…Fray Antonio de Montesinos denounced it , making an eco in the peninsula. The
legitimacy of the empire was severely at steak, because this was part of the empire and they were
speaking about cruelty. As a consequence of this, lawyers, theologians were called trying to find a
solution to all these questions.(Antonio Montesinos, text). There were many questions such as, are
the natives of America humans? Are they capable of owning their own land? Are they at the same
level as us?…
Leyes de Burgos, the first general law to their new continent. Apart from those contracts
signed under crown. The purpose of it was to sustain the living conditions of the natives and
improve them, trying to articulate conditions that could make encomiendas real. They approved 39
legal dispositions regulating the living conditions within this regime. (Succession in encomiendas,
special protection for women and children, number and distribution of Natives in parcels, religious
instructions, how to demand work from the natives …) but none of these was really applied in
America.
If they don’t want to enter an encomiendas can we force them? From this debate appeared a
document that tried to justify wars against americas, el requerimiento. Which had to be read to the
natives before establishing contact with them. The requerimiento said that every expedition
establishing contact with the American population should read the document before as a guarantee of
their rights. (“We are sent by god, and you don’t know yet but there is god above as, and you don’t
know yet but you belong to the empire, and the lord or emperor will treat you as vassals, and you will
be ruled in justice and Christian faith, otherwise you are dead)prepare yourself for war. This idea was
mad and absurd. The reaction of the natives was something between being completely shocked and
surprised.
The Spanish tried to justify that we must rule the new land.
_______
Things went so bad in America, that due to the denunciations and demands for real solutions to
the natives' problems, they even said that every civil servant of the king must leave America. (This
was their will) because of these new laws have been passed, LEYES NUEVAS, for the preservation
of the native americans population. But this situation could be stopped if encomiendas are not
finished. As long as they exist it's impossible to stop this. So they made their mistake in the
peninsula, to abolish encomiendas. The mistake was in the making. These “leyes nuevas” traveled
to America and were applied. When they started abolishing encomiendas , the Spaniards from
America encomenderos, raised an army and fought against the officer king that was trying to
apply these legal dispositions. (Leyes nuevas).
The Atlantic Ocean had a big influence on this. The king was so worried about the problems of the
European empire and so much silver was coming from America that he looked the other way. The
silver of America, Spanish empire is nothing. Even the debate was so strong ideologically speaking in
the peninsula that moved to changes in legal conceptions and regimes, for the legal system, starting
something new which is the seeds of international law. When all of this was at steak it was clear for
everyone that the papacy bulls are not legiti to everything, the papacy lands were failures, he cannot
grant land to anyone, requerimiento is bullshit, so how can we justify being there as a kingdom, if the
pope cannot grant for land…these populations are recognized as human…. They need new things to
justify their presence there. It was this theologian that provided these new ideas that are at the core of
international law. When he appeared in the 17th century and was constantly speaking about this guy
(Francisco de Vitoria ) , what did he say ?christianity has nothing to do with it, the agreement between
nations is at the base of everything, the recognition of global rights…
Barbarian were the true lords (the natives)

The emperor even owning the land cannot ocúpate this land and create laws or make them pay taxes.
The pope itself is not lord of the world; he cannot grant anything in terms of land to anyone, even if he
had he cannot allow anyone to use it in its name. The pope has no influence on the common political
public thing, only spiritual matters. He has nothing to do with the population or on believery
population.
To the barbarians even if they reject Christianity they cannot be fought for rejecting it, it is not a legal
cause to do it.
The emperor cannot prosecute any other nation, neither with the authority given by the pope, against
natural law. (Running naked in the jungle for instance).
No one could deny the right to spread Christianity.
No one can forbid them to do it. If they try to stop me from spreading Christianity they could make war.
Religious wars are going to cross Europe during the last 16th century and the whole
17th century.
La junta de Valladolid 1550 1551
The emperor called it to try to find a solution to the American problem. How should they be
treated…and people thought that they were lazy and barbarians and they should be slaves,
but in the either positions was Bartolomé de las casas that suggested that the Spaniard

should retreat from America and let them live their life peacefully, only the archbishops
should be there to spread Christianity, not to make them slaves, being there peacefully.
The result of leyes nuevas was victory for the kings administration.
A council around the king (el consejo de indias) in Madrid that worked like the
government of the American territory. For the American, it was divided in el virreinato the
nueva España which was the whole middle america, and el virreinato del Peru for the south.
New chanceries were established. 18th century there are going to be two more viceroys,
the virreinato de la plata for argentina, and el virreinato de nueva granada (Colombia y
Venezuela).
La casa de contratación was initially installed in sevilla, there are all the documents of
the americas in the spanish version, its mission was to centralize trade with the
Americas. Every ship that arrived from the americas had to pass here, every cargo, here.
But then was relocated to Cadiz.
LAW IN THE AMERICAS
America is Castilla. Influencing the legal system. Private law of America is going to be
word by word (partidas…) the same as Castilla. The differences came because of need.
There are a huge load of kings' dispositions different from the ones in the peninsula to
regulate municipalities, audiencias, regional administration, Native American cities.
One of the reasons for the Americans to break with Spain is because the only people in
audiencias were spaniards. Every great position was occupied by the Spanish nation.
Alliances between the Spaniards and Americans started.
So the difference was that the Spaniards that went to America were Castilian and their legal
system traveled with them. They married the same, they bought houses the same…. But
there is a big difference between the both territories, one is populated and organized and the
other one is a virgin territory, with also a new population unknown (the Native American) that
also needed some of their legal habits to be included for the Native American population.
This reality made possible something that was really decidable for the king's
administration to provide tons of legal dispositions for each territory.
The Castilian Americans faced the same legal problems , how do we know this tone of new
legal dispositions of public law ? Jurisdiction in the peninsula was organized, there were
jurisdictional lords, unlike in america.
The king 's administration passed an Indian compilation (made by Castilian lawyers). First
administration 1531 Universidad de México.

BOURBON’S NEW ADMINISTRATION
The war of succession abolished the Furs de València.
If you were carrying the duty of a poet or painter, and the native Americans liked it, they
considered you as a novo Spaniard.
The dynasty established in Spain since the 16th century, the AUSTRIAN DYNASTY the
Augsburgs. This figure that is known as the spell, Charles II , the last Austrian king, his
succession is going to turn into a global issue even in the americas and it's going to
leave a huge impact in the kingdom of Spain. Why this ? Because
The Augsburgs were an Austrian family that was deeply proud of themselves, they controlled
the world so it's normal. They have this strange habit of marrying between themselves.
Strong habit. Between cousins, and brothers.
His first marriage was banned and he was forced to marry again in order to provide an heir.
He was treated medically strongly, sanguijuelas everywhere, to purify their blood. He was
treated with mercury. Medicine made him weaker. The efforts of providing an heir to the
crown, every night he was laying with his wife with the company of two or three priests in
order to expel the devil and guarantee an heir and cherishing him.
02/03/2023
There was a problem with the succession of Charles the II that turned into an international
issue, a war. Because of this war a new regime will start in Spain, the bourbons, the French
family.
They profited from the tensions and struggles that were happening in the Spanish crown.
They used in their own benefit particular interest or social groups that were diminished by
the situation.
In the case of Cataluña what they did is try to push the aim and will of many social classes
(traders and burgués ) trade of america, the Alias promised to change the situation, so what
they did is after a first failed attempt of dedembarquing in Barcelona, they achieved to get
into bcn and to establish the Austrian candidate in the peninsula (Habsburg).
In every territory there were supporters for both parties. Bourbons or Habsburg.
Something very similar to a civil war happened. If the lords support the bourbons, the
Austrians will support the peasants.
Starting from the south an army which wasn’t an army of peasants surrounded the capital
without PROTECTION, (the army of the bourbons was sent to fight Cataluña). For them it
was easy to surrender the capital (Valencia). Without an army the bourbon supporters
panicked because they saw an army of peasants that wanted to burn the city. So they
proclaimed the Austrian candidate the king.
The Spanish army was mainly formed by French people because the king was French, and
the Austrian army was formed by British, Dutch and Austrian soldiers. In a lapse of 6
months, we see how the whole crown of aragon switched from belonging to the borbonic

crown of Spain to the Habsburg crown of Spain. This situation has been so polluted by
politics that we forgot the key issue. The crown of Aragon was not fighting for
independence, but they wanted the Austrian candidate to be the king of the whole
crown. For the other side they didn’t want to expel the crown of Aragon but the
Austrian candidate. In the lapse of 3-4 months the whole crown of aragon will be the
peninsular territory for the Austrian candidate, where he will be considered king,
established. The other part of the Spanish territory being borbónic. For many of the
supporters of the crown of Aragon, an Austrian candidate, it was the opportunity to make a
balance for the whole peninsula.
In their mindset a kingdom cannot survive without a king, if the king lives outside we don’t
get privilege. For the rest of the population the unprivileged this was not a problem.
The nobility was more funded by the Austrian candidate.
The whole territory of the crown of aragon will be ruled by the king of Spain, Charles
of Habsburg and the western part of the peninsula will be ruled by Filip the bourbon.
Fitz James Stuart, was the general Leader of the bourbons.
They won the batalla de Almansa. En Albacete.
The bourbons who had previously called the parliaments, abolished them. That legal system
disappeared at this moment for my territories. The most simple explanation is
The parliament will never ever reunite again, the king was the one that had plenty of
sovereignty. There was a balance between parliament and king to pass legal dispositions,
but now this balance is broken only the king could pass legal dispositions. A heavily
centralized state from now on. The legal system from Castilla is going to be
established now.
Something unexpected happened, the emperor of Austria died, and the Austrian
candidate (from Spain) became emperor. Armies became fed up with wars that became
unpopular in their territories. Also the possibility to trade with America was limited for the
French. Slavery trade. El asiento de negros.
Many of the supporters of the Austrian candidate traveled with the Austrian candidate
to Vienna and lived in exile for like 25 years because they considered him as the
legitimate king of Spain.
Alongside the change in the legal system and institutions, another change happened for the
valencian territory. Private law is going to be abolished. Strictly civil law, marriages,
mortgages, economic regime… and was substituted in favor of Castilian legal regime. In
a system so heavily romanized there were no such differences in private law except from
two things that made a difference: marriage and their legal economic regime, and
testaments. Bc the aragonese the economical regime is clearly splitted, separation of
assets, while the Castilian legal tradition assets of both are common, which leads to a
regime where the husband controls everything. In the Aragonese legal tradition when
you made a testament you can let your assets to anyone, but in the Castilian legal tradition
you could only let your assets to (no matter what father, son ).
Besides and in order to favor the change in the legal system, new changes will come, the
change of language. The valencian language is abolished for every public document, in
any public institution, it is forbidden.
The main head will not be a viceroy but a military, El Capitan general.
The valencian people won't go anymore to parliaments.
Legal thinking - glossators, they tend not to change anything but they are very limited
to interprétate.
After the glossators there were the post-glossators (Bartolo and Baldo). Glossators
did work on the margins of the roman original law, but the post-glossators could use
glosses and Roman law not only for knowledge but they also are practical lawyers.
They add a practical vision of the glossators. That's why they are also known as
advisors. They put into practice the glossators' work and brought a solution to
problems.
LEGAL HUMANISM
The renaissance was recovering the classical views. Greek and Roman (or Latin). This
movement went more than just an art trend, involving a new way of thinking that it was
going to pollute legal thinking. And legal humanism is like the translation of these new
ideas of recovery of the classical views to legal thinking and legal knowledge.
For legal thinking classical legal roman sources were far from being ignored. So where is the
change? For legal humanism roman law was not perfection by itself, it was the law of
the Romans. And this twist that could appear insignificant was actually very significant
because they are not going to devote themselves to Roman law, they are going to start
playing with it. Glossators followed the codes iuris civilis word by word, without being able to
think outside the lights of the texts. This will be broken by legal humanism. They are going to
approach the roman text in a different way. = That's exactly the way Protestantism is
going to approach the Bible. Roman law was considered here as another source. Codex
or corpus iuris civilis was a gigantic source of expressions.
Legal humanism is going to start with grammar, grammatics. They are going to be devoted
to Latin. The roman language. They started reading glosses and comparing roman texts.
What they saw amazed them because the tools their ancestors used were inefficient
because they misunderstood a lot of things and they didn’t use proper Latin.
Legal humanism found that the versions used to the working of the glossators were
the poorest versions (that were available in those moments). They started criticizing the
work of the glossators. The translations are poor, the version was not accurate to the
original version, their Latin was poor…
They started to do vocabulary. Legal vocabularies. That contradicts in many terms what has
been understood by glossators.

So what are the lawyers going to study now if not the glossators ?
Glossators were used to study in bologna. To pollute legal thinking into reality you must wait
to the next step. Initially legal humanism was strongly attached to universities and
colleges. The ordinary day to day legal life is another thing.
The change the legal humanists made was that they are not going to do like their teachers
following every single page of the corpus or glossators, they are tired of doing that. They
start re-editing the original sources expelling interpretations and glosses, because
they wanted to know the law of the Roman Empire, not what the glossators thought or other
peoples opinion. To preserve the purity of the renaissance, recovering the classics we must
go to the classical sources. The printing machine was important to spread their works.
The next step. If they were not forced to follow the texts of the Romans with such devotion
as their teachers, and also roman law was only the law of the Romans, a legal system that’s
unburied we can play with it, do new things that go beyond just interpretations of it. We are
capable of creating new things from the roman sources, which is DOGMATIZING.
Abstract legal thinking based on the legal source but separated from its words. They started
doing monographs and treaties on certain matters, for instance contract law.
With legal humanism starts a new continental legal thinking. It went along with
glossators and post glossators, but legal humanism meant a clear separation in two
legal schools, the one focused on the glossators and post glossators (classical) and
the one focused on the legal humanism.
Usus modernus pandectarum= mix legal humanism and national/

territorial law
This is going to be the final pollution of Roman law. Is going to take the previous work of
legal humanism to another step to mix it with illegitimate sources of the law. National and
territorial law.
-Instituta and Pandectas.

-Principles and concepts dealing with cases and disputes
-introduction of national law, organization, comparative law.
The Visigoths were the more romanized barbarian population. That’s why our legal tradition
is so heavily romanized. But for these countries mixing it was very useful. The next step is
going to be going deeper into dogmatizing to compare introducing national law into
universities for the first time.
Colegio mayor

The church took advantage of its position by creating universities. Scholars didn't
choose their professor anymore.
El consejo de castilla was the one which chose the public positions. The inspection of
colleges also started around this time, it was called VISITA and the inspector finished the
inspection with a report, in order to provide changes.
It was where scholars resided when they studied, but they turned into influential
institutions, depending on the colegio mayor you attended. You could aspire to one
public position or another.
Exscholars tended to admit people from their own colegio mayor they resided at.
These institutions were created to allow poor people to be fed and have a place to reside,
this changed during the modern age, the rich started enrolling in these institutions in order
to create bonds and connections for them to prosper in the future.
In the 18th century they got abolished, since they were the only way to change something in
the system. They created a strong lobby. They were abolished in order to reform
universities and the administration.
Meanwhile
Colleges were stuck in Roman law and the same old ways of teaching, they remained
intact. Not even legal humanism had any influence.
Some changes allowed there to be new subjects in law courses. For example: political
economy, natural law, national law…which were yearly subjects. They had to pass a final
exam of every subject in June, written.
They created legal plans in order to unify legal studies (CURRICULA) for different
universities to have similar subjects.
Legal universities had a duration of 5 or even 6 years. But these reforms lasted for a very
short period.
They created new dispositions that matched perfectly well the new ideas about how law
should be understood. They got principles from different codes, and created new
dispositions.
Codes appeared where natural was and usus modernus pandectarum were more developed
in Central Europe. Codes were the product of the will. (Of the crown).
ILLUSTRATED DESPOTISM came into play. It was a way of absolutism, but combined with
ideas of the enlightenment.
The true meaning of enlightened despotism is impossible, you could find territories where
despotism was applied or others where enlightenment was applied, but not PURE
enlightened despotism.
When we open those codes we see a clash between both currents, they were dispositions
different from the old ways, but with old fashioned principles. (Arcaicos)
They still did the same as before, but in new ways (not taxing the rich …) That was
enlightened despotism.

Since they only studied roman law, they realized that some part of what they were studying
wasn’t applicable since things changed. Codes were huge, sentences were not
explained, so in reality they didnt know which legal dispositions they should use to solve
cases. Many lawyers used old dispositions to solve problems. Some complications had
contradictions within them, that was another reason why they didn’t know which legal
dispositions they should use.
What happened in Spain ?

- there was a lack of commitment from the crown to reform the system.
- There was also a lack of knowledge or people in favor of the enlightenment,
- Carlos III was the only king of Spain who was enlightened.
- The only period when Spain was enlightened was when he ruled.
Criminal law is always reformed since it’s easier to change it because it doesn’t have any
impact on many people, UNLIKE with civil law which has a very big impact on society.
Even if it may seem that a revolution is a sudden change, these changes happen step by
step.
Parliaments in the middle age - liberal revolution
Were organized by states, but liberal ones weren’t.

Theoretically speaking in the liberal state, the only one who is responsible for passing legal
dispositions is the parliament. The king is technically forced to imply with them. This didn't
happen exclusively during the liberal revolution.
Previously something similar had happened, so things had started to change way before
this evolutionary event.
A century before in the UK, something similar had happened with the bill of rights. If the
king did something without the parliament's approval, it was illegal.
The incident that provoked the revolution was EL MOTÍN DEL TE. It was a problem between
the metropole and the colonies.
The colonies were unrepresented in the parliament so they created 2 conventions.
In this new parliament at first, not all colonies participated. Therefore they created a republic
in France. The bourgeoisie wanted to be recognized in the parliament. They wanted to be
recognized so badly because they were getting stronger financially, socially, but NOT
politically speaking. They were politically weak.
They wanted equality without privilege, the division of powers was a rationalist idea, which
provided them with new ideas.
The liberal revolution is the answer to the demand of more representation of a certain
group of people (bourgeoisie).
Ideologically speaking, their ideas were opposed to privilege, they even spoke about the rich
paying taxes.
They revolted because they had economical power but not privileges. One of the reasons
was the steam machine (MAQUINA DE VAPOR).
Before THE LIBERAL REVOLUTION there was THE INDUSTRIAL REVOLUTION.
The world and the trade became global, they got rich from this, but they (bourgeoisie) were
not rich in the past. New techniques were invented, and the demographics also influenced
this.
- They needed to change property, since only nobles could have it.
- Every state was sustained by taxes, but the privileged didn't pay.
- Economy started to be huge thanks to the bourgeoisie.
- Not owning the land was a problem for their economy.
Within Spanish territory the revolution appears in a very specific moment, within the
context of the WAR OF INDEPENDENCE.
________
-The nobility played a significant role because it could participate inside the situation.
-The church was completely against the revolution because of the dissentelment.
-The rest :
- People related to trade or economical situations, were in favor of the revolution and
therefore of liberalism.
- However peasants, etc.. were not too revolutionary because they were in favor of
absolutism. In case the liberals win the revolution: then disentailment would end
with the common goods owned by cities and would be bought by welfare people
(liberals) causing empowerment of this part of society.
Estatuto Bayona:
-Strongly catholic and monarchical.
-Conservative.
-Aristocrate representation in classical terms by means of the senate.
-Parliament = three states: Church + Nobility + Members of the Parliament
-Presence of Codes as a constitutional demand. They represent the king.
Constitución de Cádiz
Significant text for liberalism in Western societies.

-Product of Parliament in Cadiz because it was free from the French Revolution and
because of the trade with America that was more developed. It was the only unified
parliament.
-Includes Spanish people from america.
They created local assemblies to solve the lack of a center of concentration of power :
JUNTAS, like a higher organization to face the FRENCH troops and ADMINISTRATION.
However there was a lack of money which caused a call of parliament that’s unified and
includes the kingdom with representation. Even America was involved, it had representatives
(that couldn’t vote because of the war in many places) , and the main idea was to FIGHT the
French. This parliament was not totally democratic, some members were appointed.
-Parliament passed legal dispositions strongly liberal that lead to our actual constitution:
- National Sovereignty
- Freedom of ideology
- Demolish ancient regime: no more jurisdictional rights for Nobility.
- Constitution of Cadiz: 1812 with liberal back up.
-They truly thought that since the Middle Ages they were a liberal state.
The constitution is a milestone because of its content being influential to other sources of
laws in Europe or overseas.
IMPORTANT PARTS:
LEGISLATIVE: parliament unicameral: one voice of nation (a new chamber will slow down
the process of passing legal dispositions) , national sovereignty, universal (women or
children not included) and indirect: vote of delegate. (4 delegates)
EXECUTIVE: the king. Creation of a total separation between the parliament and the
king. Montesquieu's idea was developed : the king must have no intervention in
parliamentary matters. Only “veto” and only can ask for changes but finally it must be
approved.
JUDICIARY: total independence: only courts can judge. NOT religious presence or noble
presence anymore : consequence of the abolishment of jurisdictional rights.
Only the nation.
It was difficult: because judges are appointed by the king.
Need to establish codes: civil codes, criminal codes and trade codes.

ESTATUTO REAL 1834
CONTEXT: after the constitution of 1812 and the win of the war in 1814 : Fernando VII
returns (He was initially captured and taken to France in 1808, which led to the occupation of
Spain by French forces.) There was not a concrete reaction to the constitution this led to the
abolishment of the constitution and THE ANCIENT REGIME CAME BACK with Fernando.
The impact of the constitution caused the important will of independence of the colonies
that were against absolutism= roots of movement of independence.
Moderns were the creators of the Cadiz constitution but they saw it as “too advanced”
Under the Division of liberalism (moderate-progressives) Fernando will create a new

constitution even though he was absolutist, called the "Royal Statute of 1814".
1833 década ominosa : begins of absolutism.
Absolutism
Moderates and progressives . Something similar is going to happen on the side of the
defenders of the king. Absolutism is going to be divided in two different sides, the more
reformed or advanced and the ultra traditionalist. This division is going to be present during
this decade.
This political vision separates totally at the verge of succession, when Fernando 7 must
have an heir. He married several times, although he was the most endowed king he couldn’t
have sons or daughters during his whole life. He had no heir for decades, but when no one
expected because he was ill, married for the last time with his cousin, he had an heir. And
more unexpected yet, that heir was a daughter: (MARIA CRISTINA). So , surrounding the
king started political movements of the two previous sides of absolutism, the ones more
reformed and the ultra traditionalists. During the most significant part of this decade due to
the lack of inheritance his brother appeared (CARLOS MARIA ISIDRO DE BORBON) as
the legitimate successor and embraced ultra traditionalism as his political view, reuniting
around his figure this side of absolutism, the ultra traditionalist. Something that was going to
happen naturally, Carlos taking the throne, suddenly stopped because of his daughter, now
she would be the regent.
As a mother trying to fight or to conquer a position for her, she embraced the other political
side, the liberals” the reformed and innovative part. They were at the verge of confronting
each side for almost two years, but the king was still alive. The king is going to name as a
successor to her daughter.
As French families the bourbons were linked to forbidden women to get the throne. Only
men. This is going to be the political tool used by the brother, you cannot name the
successor your daughter””. (Ley salica) which was never introduced in Spain legally
speaking. This was linked to the bourbons, but in the times of absolutism there was no need
to establish nothing legally, kings will was everything, there was no need of publishing any
law. So, ley sálica was perfectly valid and in full force.

Fernando as an emotional father abolished this law (even though it was not in force) but this
is not important because this is only the argument. The battle of the two sides is going to
explode no matter what. This “ley” was just an excuse.
When Fernando 7 died a war started, the first Carlist war. Liberalism reappears with the
estatuto real 1834. MODERATE (Royal statute). It was not a constitution but a text granted
by the regent Maria Cristina. Everything was happening during the Carlist war. Technically
speaking is a granted text passed by the monarchy. El Estatuto de Bayona also was a
granted text. Royal statute only had 50 articles that were only committed to establish the
relationship between the parliament and the king. There is no speaking about
sovereignty, because it is clearly in the hands of the queen in this case.
(Isabel embraced liberalism, as her mother Maria Cristina did. Re arrival of liberalism.
Because of politics, the more advanced embraced liberalism. To establish ideologically
speaking a liberal regime, we need a liberal constitution. )
The parliament was constituted by the próceres y procuradores , a higher and a lower
house. They had a really reduced suffrage relying mostly on money.
What did parliament commit to ? They had the right to ASK FOR the king to do something,
only asking. The only real function was controlling the budget. La ley de presupuestos. A
very important one.
One of the things that start happening during the triennial is desamortización, putting the
dead-hand-church lands in public use. So they put it on the state to get income to maintain
the army and individuals can work on them.
America disappeared from the map,got independent with the exception of Cuba,
Puerto Rico and Philippines, the consequences of the wars lasted yet and another war
started. There was no more gold, no more nothing they needed that land.
Absolutism became so popular bc under the dissentelment leaving families at the

verge of poverty, many populations embraced anti liberalism and capitalism.
Capitalism appears.
In 1836 due to the need for the sustenance of the army they raised the prices for tobacco.
The regent was in her bedroom one summer night and two soldiers from the army went into
her bedroom, in “la granja'' to lower the prices of the tobacco and to do the constitution of
1837. PROGRESSIVE (A reinstatement of the Cadiz constitution reforming it bc it was too
progressive) although being busted, it is a transaction text, it was created to make possible
an agreement between the two faces of liberalism.. Respecting conservative views.
sovereignty : they were progressive, national sovereignty. In. The preamble.

But in the day to day living was a mixed sovereignty. (Transaction)
Now, we forget about próceres and procuradores
Senate appears: we embrace bicameralism. Long term periods for the members.
(Transaction)
Congress: limited suffrage. But we are progressive, so they lowered the income needed
to become a voter.
Executive in the hands of the king and the legislative in the hands of mixed
sovereignty the parliament.
The war was still happening but the liberals won the war and the general winner of the
war was ESPARTERO who will become the leader of the progressive party.his aura was
giant his impact as the champion of the monarchy and liberalism able to defeat absolutism
…..theoretically it would end as a minister or as a chief of government but it took a twist.
Something the bourbons have been making for generations. Getting in trouble. How did
they do after winning the war ?? Their figure should be busted (they won the war!!) but they
got in trouble, her mother Maria Cristina, she married secretly with mr. nobody two months
after the king’s death.
She was involved in every case of corruption that happened during the period by herself or
by her husband, slave trade, rail ways, bankruptcy… Every economical scandal had the
regent behind it. What’s coming is that the liberal party was angry because she was an
absolutist, she was only liberal by opportunity.
The 1837 constitution was a progressive one but it was a remarkable constitution bc
although being progressive tries to be deeply transactional. Is the result of the will of
trying to combine the two political ideas of moderates, conservatives and
progressives.
The winning figure of the war, general espartero will appear as one of the leaders of the
liberal, progressive branch . Which will be confronted by Narváez, the leader of the other
political moderate branch.
Since the “war of independence” is when military participation in politics started, and
continued during the 19th century. Many civilians after winning the French, they were
opposed to absolutism and they will fight it as military. The seed of the liberal revolution of
the triennial is made by the military.
It is going to be a very problematic period, wars of independence, war america, the

carlists wars, colonial war Africa: the military is going to be seen as an opportunity to
prosper. They gained popularity.
One of the most important problems of the liberal regime is that all elections were
corrupted. This weakness of the system also contributed in conceiving the military as a
way to prosper.
In the head of every government we are going to see now, always a militar.

The king is not going to appoint any one who doesn’t have as a leader a militar, but
militars.
Many military insurrections and every change or little change in the regime are the response
to the military arises.
Since the death of Franco, no more militaries as head of government.
Eventually the liberals won the war politically, although the war ended with a hug between
Narváez and Espartero. As a symbol of peace.
The navarese, basque…they accepted the queen and everything but they also wanted to
keep their local institutions and their tax regime, and all of these were accepted.
As a country, politically speaking during this period, Spain was a copy of France every
single minute in everything. The language was the key, no one in Spain spoke English or
German, Spain only received influence from France.
Religion was a big factor, everyone went to church.
There were no media communications but there was something that happened every
Sunday in every country, the liberals passed a law that forced the priests to cheer the
constitution every Sunday, which was a big political influence.
The government was moderate but the war has been won by the progressives. The
municipalities made the whole thing explode. For the moderates, municipalities are only
a part of the executive and must be elected by the king. BUT the progressive opposed to
this, and when the regent tried to pass a legal disposition reducing the political influence of
the municipalities, the progressives opposed, and forced the regent to quit this thing and
also to leave the country, and so she will because she was in a secret marriage and the was
behind of many corrupted public investments: banking, rails … she was forced to exile
because of money issues.
The queen, ISABEL, is 10 years old, her mother has been forced to leave the country,
another conflict is going to appear. Which is going to divide the progressive party in two: the
ones that support a common regency formed by three members and the ones that had a
single regent, espartero. (There was a group that wanted Isabel to be the queen and other
group that wanted Espartero )
This provoked weakness in the progressive party.

In the time when espartero was failing, There was another battle between espartero and
Narváez. The moderate decade started, with Narváez ahead. This is the period when
liberalism is established.

(Isabel II) The 16y queen-s husband was her cousin, and he was not interested in her. He
had “male preferences” and she had many children with others, only 5 survived, her figure
was disgraceful. Her private life was a mess. But she was the chief of the executive because
she was the queen. She was strongly conservative, in her political decisions, she only
appointed conservative politicians.
In the 1845 constitution, the moderates changed the constitution changing only ¾ articles.
The only real change was the senate.
The king will appoint senators from the military, church and nobility.
(At the end of the day moderates and progressives were both liberals.)
Although they only changed the senate, they established the seeds of liberalism under a
clearly moderate agenda:
- really restricted suffrage
- they finished with dissentelment after and agreement with the pope 1851
concordato con la santa sede
- Church controls everything regarded with education, doctrine, books, subjects
- In exchange for this control, the Vatican accepted the dissentelment done previously.
- Centralization. Everything relies on the government in the capital, NO LOCAL
AUTONOMY for anything.
- Public order is going to rely on the hands of the GUARDIA CIVIL. Created in 1844.
If you were caught by these, you were going to be judged by military courts.
- The head of the executive controls everything even the parliament.
- Single name per district. The provinces as the electoral district.
1854 the moderate party will divide also and weaken. Because money scandals and the
private life of the queen is turning public. Another militar appears heading la union
liberal, he was Leopoldo O’Donnell, born in the Canary Islands but of Irish heritage.
The union liberal was going to reunite the most progressive of the moderates and the most
moderates from the progressives.
Every election was corrupted.
General Serrano and o’Donnell made possible the return of Espartero who was exiled
to the peninsula. And tried to change the constitution. But the regime failed before the
constitution was passed. It was the project of 1868.
In 1867 the moderates returned after an uprising against espartero and the union
liberal, so we are going to see another decade that relies on Narváez and o-donnel, the
moderates and the union liberal.
American wars restarted again regarding trade rules. The American wars will end more or
less peacefully but the colonial wars in Africa will mark the whole century and even the
20th century. They started during this period. Sahara, Morocco…

This second decade was strongly militarized. There were many uprisings and revolts.
During this time there was a huge economical scandal surrounding the queen.
This will end with another revolution, 1868 the glorious revolution.
( The novelty of this new decade was the birth of a new political party that could be
considered like the center of liberalism, headed by o-donnell. )
They started thinking about having a republic. Although this division was happening they had
a common thing between all of them, they were expelled from the political system because
of their ideas, opposing moderate governments became opposing the government and the
queen.
For the more progressive radicals many of them lived in exile, but the moderate liberals tried
to gain the balance of something politically diverse like members of the parliament. Elections
were corrupted but this corruption cannot expel anyone, they must appear as a real election
and a real parliament.
The most significant part of the progressive was completely outside the society,
because the idea is that they are not going to oppose moderates but the whole regime
represented by the queen, even being strongly monarchical. There was something
that was absolutely clear for them, the bourbon family NEVER AGAIN.
Problems: colonia wars, economical crisis…
Narváez and O’Donnell died and the moderate party divided, without these figures
that died, this UNION disappeared.
The moderates were tired of the corruption of the regime. With TIME problems and strong
opposition from the other liberals, clearly what happened is that the queen left the
country.
The new regime: a hero of the colonial wars in Africa is going to be the leader of the
progressive party, general PRIM. The moderate regime vanished. With the queen leaving
the country a new regime came.
It was made possible thanks to the glorious revolution because it was the first time
when we could speak something similar to a democratic regime in spain. But to be
able to build this regime, new political foundations were needed, which will appear in a
new constitution. CONSTITUTION 1869.
Something similar happened to las juntas revolucionarias, from the war of independence .
Every revolutionary process will be exactly the same. Strats locally and grows
afterwards.
They were fed up with having to listen to the government all the time, and with this
centralized system, a revolutionary movement will start. En Madrid. The one that tried to
reunite the ones of the local ones to proclaim the new foundations of the regime.
- universal suffrage.
- Religious freedom”””. Only in private life.
- Freedom of education. Laic schools
- Freedom for association and assembly: TRADE UNIONS
- Free press. Without a special regime.
- Municipalities and provinces must be elected. Cannot be directed by the executive.
- Judges cannot be removed, (first step for judges not to be appointed by the king ).
Many of these were not fully resolved. As in any democratic regime, it didn't last long (except
the one we are leaving).
EXAM QUESTIONS ABOUT 1869 CONSITUTION,

- HOW IS SOVEREIGNITY ? NATIONAL
- HOW IS SUFFRAGE ? UNIVERSAL
- MAIN CHARACTERISTIC ? FOR THE FIRST TIME IN ANY CONSTITUTIONAL
TEXT TIL THE DAY WE HAVE A SPECIFIC DEFINED BILL OF RIGHTS
CONSTITUTIONALLY ESTABLISHED. BILL OF RIGHTS SPECIFICALLY WRITTEN
IN DIFFERENT ARTICLES THAT CONNECTS WITH THE IDEALS PROCLAIMED
BY THE REVOLUTIONARY BOARD AT THE BEGINNING OF THE CHANGE OF
THE REGIME, FREE SPEECH, EDUCATIONAL RIGHTS ,FREE RELIGION,RIGHT
TO ASSEMBLY , ASSOCIATIONS.
- THESE RIGHTS WERE REGULATED BY ORDINARY LAW. NOW THESE
RESTRICTION ARE RECOGNIZED IN THE COSNTITUTION, GRATING THEM A
HIGHER PROTECTION.
- IF ANY SPANIARDS ARE NOT CATHOLIC HAVE THE SAME RIGHTS AS THE
FOREIGNERS.
- THIS BILL OF RIGHTS CANNOT BE LIMITED, RESTRICTED BY ANY LEGAL
ORDINARY DISPOSITIONS, HIS RECOGNITION IS ABSOLUTE.
- FORBIDDEN CENSORSHIP
CONCEPTION about human rights, (these rights) but they also opened the door to
recognizing more rights in the future that today are not existent . But in the case this
happens these new rights will enjoy the same protection.
Who's the chief of the executive, the king,

And who’s the chief of passing legal dispositions, the parliament.
First time of civil marriage, instead of catholics.
First problem of the constitution is that it's a monarchical constitution and there is no king
yet !! International issues. They wanted to choose a member of any other European family
but choosing one or the other meant establishing a non verbal alliance between and the
country of the origin of the king. This could break political balance in Europe so it was a very
complicated process.

The solution was the most neutral solution possible, choosing a non related blood family that
is more or less outside the general struggle, the saboyas, AMADEO DE SABOYA. It is more
or less neutral, Italy was reunited and was not involved in any war.
Problems for the new king:he was a foreigner.
PRIM died before the arrival of the king in Madrid, by shooting. What happens next :
- a new war. The III Carlist war.
- With the death of Prim, there were many political branches unable to establish a
common agenda. The elections were also corrupted.
- Divisions, crisis, other wars in Africa, problems with the revolutionary/progressive
party.
Meanwhile the moderate party has been reorganized under the leader CÁNOVAS DE
CASTILLO, he was strongly committed to return legitimacy, THE BOURBONS.
Preparing the path for ISABEL’S son, ALFONSO.
AMADEo had a problem within the army, a specific branch that was dissolved by the
parliament without the acceptance of the army, he as the king supported their decision
and…. He had to leave the country. He dimitted. To avoid military uprising. His duty was to
sign what was decided by the parliament and so he did.
Next, no one in his mind would come to Spain to be the king, in the middle of the civil war,
the queen in exile… what happened ? The Republic. The 1st republic. But another thing
happened. The republicans couldn’t have a common agenda because of territorial problems.
The main division between republicans was between the federal republicans and the
Unitarian republicans. But republican politicians were a minority, the points they had in
favor was that FIGUERAS, SALMERON, PI I MARGALL were strongly honest and decent
men. Maybe they had mistakes but in their political agenda they were always committed,
never were involved in scandals, business problems or anything like this. This aura was the
one capable of bringing the republic.
But with a lack of political support, they are going to do a war without the support of the
army, with the moderates and monarchicals wanting the republican to fail, even more, when
the republic turned from Unitary to federal. The devil FEDERALISM.
Exam question constitution of 1873
To support this new regime, they needed a constitution that was a project , 1873
project.
Sovereignity national
Constitution federal territorial speaking, there are different states recognized in the
constitution and each of them must pass their own constitution that must be in line
with the federal one.
The executive is in the hands of the : king OF THE STATE
How many houses of the parliament ? Two : senate is a territorial one, and congress

Cantonalismo: political movement that emerged in Spain during the First Spanish Republic
(1873-1874) and was characterized by the creation of cantonalist republics in several
Spanish cities. The cantonalists demanded greater local autonomy and were opposed
to the centralized power of the Spanish state.
It’s the time for the moderates to take a step: the presidents of the republic were so
commited of their ideals that everyone who was against them must be executed but they
were opposed to this penalty so they were dismissed. One after the other. It became a
republic without republicans.
The progressive party was exhausted, the 1868 project failed, the republic failed, it was the
Time for the moderates: guided by CÁNOVAS, who had an idea of how the restauración
should be, his idea was not linked to what really happened. What happened in the
restoration was something not wanted by Cánovas, a military coup in Sagunto.
Martinez campos the general of Sagunto, what did was in the military campanet he called
a gathering and proclaimed Alfonso XII as the king and went home. In all the other
campaments the same happened, something that Cánovas didn’t agree with, because this
lacked legitimacy. How do we restore legitimacy to the new regime? Opening a constitutional
process : 1876 constitution.
Alfonso was young, healthy and unknown. Nobody knows bounds or political agenda; he has
not been linked to progressive or moderates…
- constituent parliament that will pass the constitution for the regime to acquire
legitimacy
- Ambiguous and flexible
- Transactional
- Bill of rights but flexible to let the government to modify it according to circumstances
- Corrupted to the bone. The most corrupted system we have ever
seen.(pucherazo…)
- Elections are decoration : they are turning progressives, moderates, progressive,
moderates…. Known as turnism. The king was not involved.
Sagasta and Cánovas were the ones that made this regime possible, when they
disappeared the system exploded. This system will create many of the problems that
would end in a …civil war.
We will start a new monarchical period with the figure of Alfonso XII, with no links to Spanish
politics. Although it is going to be corrupted to the bone,
There was an urge to achieve constitutional stability. They wanted the regime to be stable,
passing a text that needs to be transactional and totally ambiguous, at max. The idea was
being capable of accepting everything. Ofc there were main guidelines
- Parliamentarism two houses
- Monarchy
To facilitate moderates and progressive the changes of each party at their right turn.

Political rights are going to be regulated.
We were used to seeing the reminders of absolutism reappearing constantly and a solid
established liberal movement, some appearances of republicanism, but have not seen
LABOR PARTIES, socialists, communist and anarchists. Anarchism is really influential
and politically speaking strong in spain. This was the new thing of this period. Besides
turnism.
Also in a very own national dynamic this is the time in which many other political ideas and
agenda consolidate around political parties: nationalist, vasc, catalan parties…nationalism.
The German state will be a unified country, the Italian states also. The only difference is the
dynamics of every country. But these ideas nationally speaking it's everywhere. Nationalism.
This constitution 1876 was extremely flexible. Sovereignty: NOT DECLARED but the art.18,
mixed sovereignty, the power to make laws lies in the courts and with the king.
The progressives embraced the idea of mixed sovereignty, also bc the figure of the new
king, let them hope that this monarchy won't point only at the moderates as it used to be.
They practically brought the king. Initially that worked.
Bill of rights: keep it, but adapting it to the new. They recognized the rights of association,
reunion, etc… but they are going to be regulated by the state.
Democracy was really dangerous in their mindset.
The parliaments, two houses. Is the government the one who appoints the parliament.
- congress: elected no constitutional election, corrupted, regimen established.
- Senate: mixed senate. The king must Intervene but also the votes must intervene.
Lifetime appointment.
Caciquismo: the person that was in charge of fixing the elections.

Crown: executive (king, but he played no political role not at all, he accepted everything
because the influence of Cánovas was so huge), government, army, foreign affairs.
Judiciary: judges stability. Pumpling exams were kept since 1868, to become a judge.
Codes: single code (civil, criminal) but variations allowed.
What happened to this regime, it worked perfectly well in their terms, because of course it
was far from being democratic. In terms of political stability, it was a huge success. This was
possible because the two foundations of the system, moderates and progressive were united
under Two charismatic figures, Cánovas y sagasta, when they disappeared the whole
system fell.
Also, at the verge of the 20th century everything changed. The country itself suffered an
earthquake, nationally and politically speaking, sentimentally… it became a regional country.
Cuba, Philippines and Puerto Rico got their independence. 😭 Everything was a steak at
this moment. A total failure.
They were way behind economically speaking, military,territorial and influential, the empire
turned into a regional and marginal state in Europe. National crisis.
This was a corrupted regime without the figures of the turnism regime. This time was seen
as the opportunity to change everything in the country, and the Catalan, basc
nationalism wanted their autonomy and political influence recognized, in order to gain
administration of their own business. King Alfonso XII died. His son intervened, he is not
going to be the same as his father who was not doing anything only what sagasta and
Cánovas told him to do.
The way to restore this crisis and problems was doing the same as the rest of Europe was
doing, colonizing Africa. Ended in a political, military and everything disaster.
They were going to be defeated by TRIBES. The military used the income for the army
to get rich, countries or roads that had to be built were not built, food that was supposed to
be given to the troops, was not provided… estraperlo…the conditions of the troops were a
disaster because of this. Militars were getting very rich. Alfonso XIII is going to be heavily
involved, we don’t know to what extent, but he is involved in this. Semana trágica de
Barcelona, the anarchist movement…. Canalejas, Maura.
He suffered different terrorist attempts and they survived miraculously in all of them.
He opened the door to a dictatorship in the form of Miguel primo de ribera, coup d-etat.
He started a dictatorship but was not so different because restoration was already corrupted,
the purpose of this dictatorship was establishing if it was possible like a technocratic
regime. It is not a fascist regime like francos. There would be a king, establishing
non-political institutions to solve problems, but that was impossible from the very first
moment. So what happened is that all around Europe, ww I ….situation was complicated.
When the dictatorship failed, after him came another general that tried to RE-restore the
restoration, BERENGUER, called for an election …. But the parties that supported the
system failed in these elections that were local. Candidates were not supporting the king
or moderates or progressives. They supported REPUBLICANS,
SOCIALISTS…democratic, they supported the following change. Alfonso XIII exiled and
left the country because the system collapsed.
THE II REPUBLIC CAME. New constitution. 1931. FULLY AND completely democratic and
also is like the answer to the many problems the state had at this moment. Tried to solve
something that was demanded by the country, the territorial organization of the state.
- republican constitution. NO KING. Theoretically speaking it is a Unitarian state. Not

a federal one. But it's going to solve the territorial problems.
- Political autonomy to the territories that demand to have it. Demand supported by
the most significant part of the municipalities, secondly must be supported by ⅔ parts
of the population after a referendum, and Third is going to be passed by the
parliament. NAVARRESE constitution,copied this constitution word by word. Only
Cataluña embraced this Unitarian system, during the war, the vasc country.
- Parliament, one house. No senators. Only CONGRESS.

- The head of the state: president of the republic: not the prime minister. The
PRESIDENT. Elected every 6 years. He is not in charge of the government
though.
- Suffrage: universal, for the first time women could vote. Not originally, in the first
elections they were not allowed but under the second period they were approved to
vote.
- Laic state. Total and complete separation between the church and the state. For the
first time. Commitment to support Catholicism disappeared.
- Castellano not the only lengua oficial but also other languages spoken in Spain.
- Full complete recognition of rights and public freedoms guaranteed.
Names, dates and periods are important to understand and to place the text where it
belongs. Focus on the differences from one text to the other. Senate, suffrage, sovereignty,
etc… a king has no space in a republic. Examen.
LIBERAL CODES
Liberal codes origin, legally speaking there are two branches of liberalism that
comprehends every liberal idea of the liberals in the opposite against the ancien
regime. Those milestones are codes and constitutions.
The code is a legal technique, new legal structure, tool,and is going to change
everything in the legal system. The first code was Napoleon civil code in France,
1804. The way laws, current laws are structured and conceived and organized and
written, the words used… are taken from here. This was the (next step of
enlightenment codes). They are so important because within these formal ways are
ideals. Liberal ideas in it. Of how civil institutions should be organized, property,
civil rights. Divorce…. Those new civil institutions are in the code. Those new
principles, equality, property. That's why they are so linked to liberalism, we
can consider them two ways. Modernizing legal techniques and from a political view
linked to the legal view, which is being able to comprise revolutionary ideas within
this new.
This idea appeared in the text of the constitutional text of 1812, is a connection as a
constitutional duty, CODIFYING, the way to modernize and to change the ancien
regime.
This text will mark the whole process of codifying. Only three subjects are meant to
be codified, because of its significance for the liberals: (it was not for everything, only
for the really important issues).
- CRIMINAL
- TRADE
- CIVIL

Constitutions were not devoted strictly to the public side of the legal system but to order and
guarantee of political rights, administrations… Another thing not strictly connected to private
law issues are in the civil code.
We can approach the codes from different views:
- as the next step in legal knowledge. In terms of the legal system. From this point of
view is the logical next step .
First codes appeared during despotism or during the enlightenment, the liberal
revolution was not the first time codes appeared. They are all similarly organized and
structured. There was a huge change between the enlightenment/despotism and the liberal
codes, they wanted both to change the society but they had different principles. Although
formally similar, in the bottom they were very different.
Idea of enlightenment codes: legal system has to change.
The same with local regimes, they failed but if there is still space for them to prevail against
a general legal disposition they will prevail.
Common law is fading.
The judiciary branch were unrestricted by anything not even by legal systems because they
could use customary dispositions, but of course this legal uncertainty comes at a moment in
which it is too complex to continue. The enlightenments // are going to do codes, not to
change feudalism or ancient old ways, but to preserve it.
For the liberals, however, the codes are precisely to do the opposite thing.
They need to change JURÍDICAMENTE, in the way the legal system is conceived. We need
to get rid of common law, customary dispositions, local legal dispositions…. af all the
things of the old regime. The tool to do it was conceived the legal system differently and
the way to this new conception was : the codes.
(The enlightenment didn’t want to abolish privilege and inequality, they wanted to
keep those things.)
The best advisor for codes was an emperor, Napoleon. BIG CONTRADICTION. He crowned
himself as an emperor, how can he be the supporter of liberal ideas and liberalism changes.
(Enlightenment brought the idea of improving things by rationalism: but rationalism could be
used on both sides to preserve or to change, for despotism was clear, all for the people
without the people. )
When do the codes appear in the spanish legal system, (during the enlightenment they
appeared but the idea failed miserably) since the beginning of liberalism. In the Cadiz
parliament 1812. During this parliament, they brought the idea of how it was necessary to

have a code. The civil code of the French was in 1804. Even they started to work on the idea
of it. There were proposals to create boards and commissions to start working with laws to
prepare this future code. In terms of establishing the idea of a code and how it should be
they created everything because they were able to establish the urge for codeS in the
constitution . At this parliament they revolved at this idea of the code, revolving at this ideas
let them in 2 ways:
- writing the code (lead them nowhere)
- As the purpose of a revolution, succeeding in this idea was completely needed.
- How should CODES be done ?
Civil, criminal and trade. They saw the code as such a significant tool that it must be
preserved to the most significant branches of the legal system, criminal law, civil laws and
trade laws.
These issues were the only ones that deserved being codified.
Also because their ideological agenda was completely centralist and Unitarian
copying the French ways, they added one sentence that will make the defeat of this
idea almost for a century: THE CODES WILL BE THE SAME FOR ALL THE
MONARCHY. Because there were many Spanish legal systems.
Foral legal system must be abolished. This would be an obstacle to codes, because the
Vasco Navarrete and Aragonese and Cataluña territories are not going to quit the legal
system in favor of a Unitarian code.
Civil law of the argon kingdom was preserved and the one from the Catalan kingdom was
preserved as well. What they will do is try to get Castilian solutions for everyone, but all of
those territories were not interested in those solutions, because although all the Spanish
legal systems are very similar, there are key aspects that are completely different. Last will
testament, marriage economical regime.. in the foral regime separations of good, properties
of the wife remain in the family of the wife and go directly to the children, husbands cannot
take a single penny.
The Castilian way is common goods which meant that all the money was in the hands of the
husband.
Secondly: the other key element, last will and testament. According to the Castilian legal
system, the French legal system is going to certify this system as their own. France is the
light of wisdom (for the Castilian ) for the rest of the country, the French model was bullshit.
Being able to decide the last will and testament. Completely or not. According to the
Castilian and French: there is a portion of your goods that are going to be to your heirs
doesn’t matter what.
In the rest of the system : you can do whatever you want with your goods. You could leave it
to whoever you wanted to, without restrictions.
This mindset has a huge impact on how society was structured and conceived. In terms of
businesses.
Finally the government who will pass the code will accept (the foral regimes).
That one sentence was referring to america. Many of the foral congressmen agreed, but
they said that they were not speaking about foral regimes, but about Americans. The native
Americans communities.
In terms of the code agenda everything started: with a huge impact. Once America got
independent, that sentence remained. Fernando 7 returned and blocked the constitution and
everything regarding liberal codes.
The process for the liberal ones started in Cadiz, although it was a failure from the point of
view of showing some real works about civil law, made clear statements about how codes
should be which are going to guide the whole process for decades. Unitarian ways to make
the codes will cause trouble. Bc civil law reality was diverse.
Civil law impacts every single issue of your ordinary life,rights, family parenthood … but
criminal law was only affecting a little part of the society so it was easier to change.
Because of the situation in Cadiz, it was going to be difficult to advance in this task of
codifying. The process was stopped and the civil issues will have to wait until the liberal
triennial. 1820-1821 the liberal triennial was committed to spread liberalism and they thought
that the constitution or the codes will be so good and will be so significant that they will turn
the whole population into liberalism.
- They created laic catechism, placing the constitution in the place of God
- They forced the church to speak about the constitution positively every Sunday.
- They created constructional subjects for law schools even in private schools.
- In every population bylaw the main square of every population must be labeled the
constitutional support. (Plaza de la constitution, homenaje a la constitución)
- Birth registrations were many men with CONSTITUTION as their second name.
In a way they took this idealism into codifying and they broke with the statement of the
constitution that they thought were going to do like 20 codes, everything is going to be
codified, a total mess…(railway code, sanitary code…) there was something similar to
Digesto in terms of volume, if codes are so important we must develop those principles
completely.
The public institution that would guarantee this would be the ….
The first project of a civil code was made in 1821, but with this situation will remain
unfinished,made by a commission formed by congressmen, because many of them were
not only lawyers but law teachers (congressmen), but the previous works have been
preserved. We have the first book, a huge one speaking about the rights of civilians. The

most advanced ones were the rural code for agriculture and the sanitarian code bc this time
there were several epidemias, fiebre amarilla.
Gareli was one of the congressmen committed to this first project, law teacher, and the head
of the Supreme Court. He was the chairman for constitutional law.
There was a Supreme Court bc with the liberalism hierarchy arrived.
1823 triennial finishes and absolutism returns, and all of the previous works attached to
liberal ideas were stopped, initially. John constitution went to the register to change this
name…the monuments were demolished or changed their name. They had a need to bust
the economy and the trade law was passed during this period, 1829 for different reasons:
within a capitalist context being able to pass a trade law code it was politically neutral had no
impact on anything but with criminal or civil law we cannot say the same. Within their own
supporters there was the need to modernize the legal system, enlightenment codes were
something similar in the terms of mindset. But they lack support of the king or administration,
but individually speaking there are some steps into codifying; when can call this as private
projects that are going to go anywhere but why are they important because this works are
going to be used in the future. They prepared doctrine, institutions in order to go faster in the
future.
1830 and we don’t have a code yet. They saw things went on without a code. Because many
of the changes that needed to be done to change money issues for liberals like jurisdiction
property etc had been done previously with specific legal dispositions. The code en
comprises all the civil subjects, but they key subjects for the revolution to succeed cannot
wait until the arrival of the civil code are reformed by specific regulations, like: jurisdictional
rights abolished, property changed with dissentelment.
Still they needed teh codes so they kept working on them, there were some dispositions that
guaranteed the changes in property that helped erase privilege and open the door to the
revolutionary to buy land invest etcetera without need of waiting for the code.
Constitution 1837 is going to interfere a lot with the next project, the most complete one,
from 1836. The first one introduced to the parliament. Gareli returned as a minister and is so
committed to the idea that created the comisión to be able to pass and prepare a civil,
criminal code .. formed by congressmen but also by foreigners to the parliament, experts.
Politicians used to slow the process that is why the work is going to be done by experts
outside the parliament. From one of this commission, the civil one, comes this project from
1836 which is known by the name of ayuso tapia vizmanos. It will remain as a project bc is
not going to be passed but it is the first FINISHED and complete project.
DIFF BTW ENLIGHTENED CODES AND CIVIL CODES , enlightenment one were not
passed by parliament, but by the crown, and the liberal codes were passed by the
parliament.
These codes are going to be introduced to the parliament for the debate, they Will argue
article by article , it is impossible for the parliament to start a debate for it, it is Heavy and

long, but it is law and every law must be passed by the parliament. The cc is going to suffer
from a lot of bust and obstacles depending on the context and each and every government.
We haven’t reached the code yet but at least we have a FINISHED project. SOMETHING IN
ADVANCE that helps understand issues: in this code like in the rest of the projects we will
see, starts to appear really problematic issues, politically legally and socially speaking. The
first book is about persons, attached to this there are several institutions that affect the
ordinary life of the people, civil registry for example, the church was in charge of the register.
Problems that start to be foreseen. Codes are a big debate. The advantage of this project is
that it was shown to the parliament but not debated so it was unknown to the parliament.
Parenthood depends if you were born inside or outside marriage. Marriage, who can marry
who recognizes it, recognizes which one is a legitimate marriage and not, the church is in
charge of it. If it is a civil institution can civil institutions be broken (divorce). The next code
who is going to be opposed by the church is going to be done by the moderates. The church
will reject everything. Since here marriage must be the canonical one only. Divorce was not
yet contemplated, but only because of parenthood rights involved. Cuernos.
Doctors, priests and mayors were the most significant authorities in ordinary life. In other
populations also the teacher.
The next step is a movement to be as stable as possible, they wanted stability, the only way
to guarantee approval of the civil code. Governments changed a lot in this era, during
moderate decate 1843, an institution was created to give stability to the codifying process
the “general codification commission” divided by subjects in charge of renewing or creating
the codes. Just as it is today. It is going to be in charge of passing the first KNOWN common
project of the civil code, 1851 Garcia Goyena. Passed by a commission. But the opposition
to it was great. This one due to a stabile period the moderate decade the government felt the
need to make it public to know how it will be received, badly and poorly bc many of the
problems that we have foreseen, are now in the face of everyone, the state is going to o
regulated marriage, the state is contemplating divorce, public registration …the church has
less power, there are other opposition in its article 1992, the code said every foral
disposition contrary to the code is abolished. Catalunya mane opposer. Economical
legal regime of marriage and last will and testament, common goods separation of goods.
PROPERTY ALSO. Opposition also but not only from the church but…
From chanceries and different institutions ,which made reports rejecting this project. Each
and every institution made their conclusions based on different points of the code. They
focus on one matter or the other depending on the institution.
Foral regimes were related to economic regimes of marriages and last will and testaments.
There was one thing, they werent opposing to the idea of the code or codifying, they
were opposed to a UNITARIAN code, only and exclusively in those issues.
Something that wasn’t happening in Castilla is that the social organization was different,
there were many legal systems in the spanish territory, one of the key differences is:

property. Because the legal owning regime was different depending on the territory, a
Unitarian solution given to the final clothes of renewing the feudal property into a capitalist
property, for everyone the same thing will lead to debate.
Emfiteusis, in many places of spain reach the 19th century, property was still organized in
media vle ages, with the code they try to get rid of and creating a capitalist property.
Enfiteusis was splitting property there were two owners, which are not good for
business or investment…because they are two, the real one and the useful one, the
real one was the one that didn’t work , and the useful one was the one that worked the
land. The peasant cannot be evicted if they fulfill the tasks.
With the revolution this structure remained in many places but there was a switch in many
real owners that were not only church or nobility but also the ones who buy, the
dissentelment, the state. This institution must be broken but the solution they gave
was:unwanted consequences
- They gave the opp to the peasants to get the land under really soft requirements. It
was easy for them to unify land.
- Depending on the territory, the ones with a lot of lands in enfiteusis.
- In rural places enfiteusis was easy to remove because the land was dry.
- In other places like Catalunya, Galicia, enfiteusis remained because we have a fertile
land and there were benefits for everyone.
- for the ones owning a land enfiteusis was really profitable why would they
change this.
When they passed this code , the result was very undesired,(the useful ones to have the real
dominium on the land).
The open fields in Spain are where there was no enfiteusis (Extremadura, Castillas ….) and
the more divided lands are the ones where there was enfiteusis (Galicia the most one and la
costa en general).
The next step is : they got tired of working, investing time, commission and not getting to the
point. But revolution doesn’t stop, so it's the time for them to open a space in which the idea
of the code was put aside for the benefit of special legal dispositions.
They started thinking about doing changes to this code to please everyone.
Special legal dispositions: outside the code, they cannot wait for the code.
- Mortgage regulations, ley hipotecaria.

- Public registration.
- Civil marriage and only civil marriage.
- Property.
- Family.
The 1851 code no llegó a aprobarse solo se publicó para ver el feedback. Y como no
funcionó ni se tuvo en cuenta.
There is a still giant elephant in the room: the Unitarian idea of the code, sooner or later it
will appear. It is going to happen.
In times, there was a minister and also the commission and the politicians to confínese that
we must solve the elephant in the room, that idea must be adapted to a real solution. We are
not going to get a Unitarian code until we solve this problem.
Art 1992, we cannot abolish foral regimes, we have to fit them in this Unitarian code, which
is exactly what they are going to do.
The minister Alvarez changed the rhythm of codification, being able to introduce a new
mindset with two key changes to it. The foral are not going to be abolished, they will remain
alive for certain issues. The parliament is not going to pass it; but the government is the one
who is going to pass the civil code. The parliament is going to pass what they call a
procedure law (conditions) about how to make the code: la ley de bases. It was easier for
them to debate on only the ley de bases that had much less articles than the code, they
would ve taken so long.
They do the appendixes, ISSUES where each territory is going to develop however they
want in certain matters. The rest of the code was Unitarian.
When those were passed it was just a matter of time of passing the civil code.
Which are the territories recognized as foral territories: basc country, Navarrese , aragonése
y catalán. Valencia at that time had no foral regime recognized.
1888-1889 when the code was passes. The first code published was a fucking disgrace,
there were tones of articles with mistakes so they had to modify it and chnage articles. So
they finally published it in 1889.
CRIMINAL CODE
If a civil code was needed, a criminal code was demanded. Reforming criminal law was like
a humanitarian need, criminal laws of the ancient regime were absolutely and totally brutal.
This is something that the government and the monarchy took nuns of really soon.
Apart from the prisons that were in the peninsula which were dirty and inhuman places, the
prison system was based in prisons outside the country, Africa and the islands, Ibiza.
Far from the eyes of everyone.
Also it was normal during criminal procedures as a way of proving guilty: torture. That was
the normal way, you confess and you go to prison.

Death penalty was everywhere, but not only, normally hanging. If you were a noble: cut the
head, bc being hung was dishonorable.
Some territories also used the dismembration. Esta era la Norma.
During the enlightenment these practices were seen as completely inhuman, far away from
the enlightenment spirit, there was no distinction in really committing the crime and the
fact of just trying to commit it.
A really weak system of any kind of legal guarantee to the one accused of something. The
reforms were completely needed. During this brief period of time when the enlightenment
appeared we have many change trials.
Once you entered the prison normally you died there.
The ideas of many figures of the enlightenment have a huge impact, taking into
account the humanitarian spirit of the era, considering the prisoners as persons.
New ideas were added to the concept of criminal law: different concepts of responsability,
need to clarify the grease in fulfillment of crimes, and the need to establish a clear and legal
degree of penalties, to get rid of torture, the need to charge under proven facts not only
because of intentions of the accused.
Lawyers existed but criminal law was considered so secondary so paralegal”” that no good
lawyer was committed to criminal law. They didn't see the point; it was easy.
When the criminal code was passed in 1822,it was too progressive because it was done
during the triennial, and they doubted if it was in validity because their regime changed so
quickly, before the civil code. During the moderate decade they passed a new criminal code,
1848:
48 one the public opinion wasn’t even aware of the first civil code project of 36.
They contain a lot of reminder of dark ages but they introduced new criminal law ways:
responsibility, fulfillment, need to establish types of crimes … and outside THESE
CONDUCTS established in the law there is NO CRIME committed, they are narrowing the
space for crimes for penalties that in the ancient regime was an open space. It is not the
same as attempting or fulfilling.
1870 they will pass a new one. And a new one during the dictatorship of Rivera, and a new
one during the second republic.
The thing is it was so easy to pass the criminal codes,but it was the opposite with the civil
codes it was more difficult.

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LESSONS-OF-HISTORY-OF-LAW.

Historia del Derecho

Reservados todos los derechos.

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CLASSES AND DOMINANT ESTATEMENTS

VASSALAGE AND LORDY RELATIONSHIPS

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The investiture was a ceremony by which an overlord transferred a fief to a vassal or by

CATALAN AND LEONESE-CASTILIAN FEUDALISM

These counties were under the control of the Count of Barcelona.

Servitude and property

A manor is an economical unit of exploitation and a political unity of organization.

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Extension and description of the manor

Tendencies in the low Middle Ages

-Separation of the manors due to the church’s appropriation.

IV. RECONQUER AND REPOPULATION OF THE

REPOPULATION AND RECONQUER

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The frontiers, borders and “Extremaduras”

Conquest and repopulation in the XIIIth century.

The long interregnum and the end of the reconquest

- Economic crisis and civil war in Castilla

*Catalonian feudal hierarchy

Count of Barcelona, Other Counts, Viscounts, Comitores.

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CHRONOLOGY AND STATUS OF THE SOURCES

MIDDLE AGES (Muslim invasion - fall of granada)

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EARLY MIDDLE AGES (alta Edad Media)

Customary Law Based which was Individual and Diversified. Lordy

The system would be established to solve lordy and vassalage relationships.

Laborers: jornaleros, they work for salary days.

Yugueros: herd owners.

Farmers and shepherds.

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They found the liber iudiciorum. (Christian laws)

This book became really useful.

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Civil institutions used to solve ordinary issues.

It was the turning point for the legal system.

LATE MIDDLE AGES : (baja Edad Media) universities -

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Their education, as mongs, was based on theology and on philosophy (Aristoteles).

(Chronology : from XII-XIII)

Topics and legal reasoning

A legal method traveled with the legal system.

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-Reformation of Gregory VII 1073-1085

They get rid from auxilium and consilium.

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Models and degrees of universities:

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How do you get bachelor? What do you study? Subjects

How do you get a license ?

- Get the bachelor

How do you get the PHD ?

LEGAL HIERARCHIES AND INFLUENCE OF IUS COMMUNE

How did Roman law influence the peninsula?

VALENCIAN LEGAL SYSTEM:

CATALUÑA LEGAL SYSTEM:

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-Alcalá Ordinances 1948. Made by the king.