Spain Law – Period of the Reception of Common Roman Law and Canon Law

By | December 31, 2021

This period is prepared in the second half of the century. XII and in the beginning of the XIII from the contacts with the Italian and French schools and with the legal literature produced by them. It begins in Castile with Alfonso X and in the other regions more or less at the same time. The general characteristics of this period are the following: a) the Liber iudiciorum continues in León, as a law still of direct application, at the end of the century. XIII. It was the law that applied in the appellate court called Juicio del libro. In Castile it was placed somewhat in honor as an ideal basis for law and supplementary law. It was also given as a fuero local to some cities that had nothing else, from Fernando III (Cordova, Seville) and Alfonso X (Jerez) and used as a source for other collections of this era (eg, for the Fuero Real). In Catalonia it was repealed in 1251 by James I in the Cortes of Barcelona, ​​but, despite this repeal, it continued to be used as a supplementary right in many cases. b) Local law (fueros) has its importance in the first part of this period; but the juridical evolution is favorable to territorial law, to which local law gradually gives way. c) The territorial law, in this period, obtains its development through: 1. partial collections of regional customs, especially in Catalonia; 2. fueros generales ; 3. judgments; 4. laws made in Cortes with the monarch (Aragon), and by the monarch alone (Castile, Navarre, Catalonia). In this way we get to fix the law, especially civil law, with its characteristics in each of the kingdoms or principalities. d) The Roman part, so preponderant, of the Visigothic collection and the whole immense Spanish Romanistic tradition contained a little everywhere: in national canon law, in the works of St. Isidore, in the formulas and documents of applied law, etc. overwhelmed by the strong rebirth of the Germanic element. Some flash of Roman light arrives at the end of the century. XI through medieval summaries and canonical collections, but the eclipse of Romanism was almost complete. The influence of the school of Bologna manifests itself in the second half of the century. XII, intensified in the thirteenth and fourteenth centuries and continues with the foundation in Bologna of the college of Spain Clemente made by card. Albornoz (v.). Romanism triumphs first in science and practice and then engages in a thorough struggle on the legislative ground which in the following period, especially in Catalonia and Navarre, was won, when Roman law became supplementary law. Roman science comes mainly from Bologna. Here we find the Catalans and the Castilians, the Navarrese are numerous and there are also, teachers and disciples, from all the other regions of Spain. Ponzio de Ilerda (v.) Who taught in 1215 is known; Raimondo da Penyafort (v.); Vidal de Cañellas author of the of all other regions of Spain. Ponzio de Ilerda (v.) Who taught in 1215 is known; Raimondo da Penyafort (v.); Vidal de Cañellas author of the of all other regions of Spain. Ponzio de Ilerda (v.) Who taught in 1215 is known; Raimondo da Penyafort (v.); Vidal de Cañellas author of the Code of Huesca, fundamental for Aragonese law, and perhaps also of the Code of Valence ; Pietro Albert, author of the Commemorationes, important for Catalan law; Pietro Ispano; Lorenzo Ispano (v.); Vincenzo Ispano, disciple of Accursio around 1220 and professor around 1230; Giovanni Stefano di Pesetella, master around 1223, then moved to Padua; John of God (v.); Bernardo Compostellano junior or Briganzio (master between 1254-1260), Giovanni Garcia Ispano. In Italy the Spaniards also frequented Padua, Pavia and Vercelli. In France the universities of Toulouse and Montpellier were attended. And) Spanish libraries and archives since the 10th century XII are full of Romanesque manuscripts: thus the oldest codex of the Summa Institutionum of Piacentino is preserved in Vich. Di Lo Codi is found in Tortosa (chapter library n. 129) a manuscript of the end of the century. XII, etc. f) In the second half of the century. XIII we find in Barcelona a school of law, in which Roman law was taught and at the beginning of the century. XV (1400) the University of Lérida was founded to teach canon and civil law similar to Bologna. In it the teaching of civil law was favored in every way by the Aragonese monarchs. In Castile in the sec. XII the University of Valenza was founded, to which Alfonso VIII (1158-1214) called professors from France and Lombardy, then the University of Salamanca (1179), confirmed and reorganized by Fernando III, and that of Valladolid (1260). g) In the formulas of praxis, up to the middle of the century. XII and especially in the XIII and XIV centuries, the Roman content is evident. h) The canonical element follows the fate of the Roman element with which it is united as a science, as a practice and also as legislation.

The most important regional rights in this period are those of Castile and Catalonia.

Large public legislative collections and some private collections of law and jurisprudence appear in Castile during this period:

aPublic collections. – They are the Fuero Real or Fuero de las leyes, the Partidas of Alfonso X and the Ordenamiento de Alcalá of Alfonso XI. The Fuero Real was already published in 1255, it was inspired by Germanic law but tempered by Roman elements received from the Fuero di Soria (ed. By G. Sánchez 1919) and by canonical elements received from the Decretals. The Partidas (parts) form perhaps the finest juridical collection of the whole Middle Ages: they are a literary and juridical masterpiece. They are inspired by Roman law as it was taught in Bologna and canon law. Although the right of the Partidas, because he was too cultured and too Roman, having not overcome the reactions, even violent, had a very strong influence on the prevalence, in the following age, of the Roman element. The Ordenamiento de Alcalá is a collection of laws in XXXII titles, approved in the Cortes of Alcalà under Alfonso XI in 1348. It is very important in the history of the struggle between the Germanic element and the Roman element of Spanish law. In fact, it marks a real regression for Roman law, which had triumphed in the Partidas. The Ordenamiento de Alcalá was corrected in 1351 by Peter I, but the extent of the correction is unknown. For Spain 2003, please check

bPrivate collections. – There are two of written norms, called Leyes nuevas, and one concerning the process, called Leyes de estilo, of the time of Fernando IV, attributed, but without foundation, to Oldrado da Ponte.

Catalan law has a very strong personality in Spanish law. It still retains many of the characteristics it acquired definitively in this period, and it can be rightly said that, in large part, it is still medieval law today: the Germanic element is found to be very accentuated. The Roman and canonical element triumphed in Catalonia more widely than in Castile, although the struggle against it was in the 10th century. XIII and XIV very bitter. In 1409, under Martin I, common, Roman and canon law is recognized as an integral part of Catalan law.

Catalan territorial law is made up of usatges, which become the fundamental Catalan law: they used to be put as appendices in local collections. In the second half of the century. XII appear two private collections, which later became public. They are: 1. the Costumes de Catalunya, an anonymous work written in Latin that contains 17 articles on Catalan feudal customs: 2. the Commemoraciones de Pere Albert, a two-part treatise on Catalan feudal law originally written in Latin by Pietro Albert, doctor of Bologna and then canon of Barcelona. In 1470 he obtained the force of law at the Cortes di Monzón (ed. By A. Robira, Barcelona 1933). Real collections of local law are the Consietuts, very numerous in this period. The main ones are: 1. Consuetudines illerdenses, the most ancient of all, which were compiled by the jurist of Lérida Guglielmo Botet in 1228 (ed. Of Valls y Taberner in the Revista jurídica de Cataluña, 1926); 2. Consuetudines Dethursae (Costums de Tortosa), which is the largest and most scientific of these collections of customs: it had a long elaboration and several editions from 1241 to 1294. It consists of nine books with titles and paragraphs: it is inspired by the Costum of Valenza and directly or through this at Lo Codi. The common law affects the collection, which is declared in force after the local law and the usatges, the canon law and the maritime law of Barcelona (Costums de la mar); 3. Consuetut de Barcelona commonly known as the recognoverunt proceres. It is a fundamental collection in Catalan public and private law. It consists of 116 chapters written in Latin, the first of which begins with the words: Recognoverunt proceres. It was approved by Peter III in 1284 for Barcelona, ​​then extended to all of Catalonia and also received outside: Fr. eg., in Cagliari. Alongside the local and territorial elements, there are Roman and Visigothic elements (ed. Of the Latin text by Tucci, The green book of the city of Cagliari, Cagliari 1925); 4. Ordinacions d’En Sancta Cilia. It is a collection probably of the century. XIV which contains in 70 chapters the customs of Barcelona in the matter of rustic and urban servitude. 5. Consuetuts de Girona. Important for the knowledge of Catalan feudal law. Private law is strongly influenced by Roman law. 6. Maritime law. Catalan maritime law was the basis of Mediterranean maritime law, and one of the foundations of the common European maritime law. Its main sources are the Barcelona Ordinacions of 1258.

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