II - Spanish Civil Law Tradition

To understand the historic roots of the legal tradition that California brought with it to statehood in 1850, one must go all the way back to Visigothic Spain. The Visigoths famously sacked Rome in 410 AD after years of war, but then became allies of the Romans against Vandal and Suevian tribes. They were rewarded with the right to establish their kingdom in Roman territories of Southern France (Gallia) and Spain (Hispania). By the late fifth century, the Visigoths achieved complete independence from Rome, and king Euric established a code of law for the Visigothic nation. This was the first codification of Germanic customary law, but it also incorporated principles of Roman law. Euric’s son and successor, Alaric, ordered a separate code of law known as the Lex Romana Visigothorum for the Hispanic Romans living under Visigothic rule. In 654 AD, king Recceswinth reorganized these two codes into a new, expansive code of law known as the Liber Judiciorum or, in its later Spanish version, the Fuero Juzgo. In doing so, the Visigothic king departed from the ancient tradition of maintaining different codes of law for Romans and non-Romans. Under the Liber Judiciorum the Visigoths created one jurisdiction for all inhabitants of their territories, and the new code became the law across Hispania.

Fuero juzgo: 1241 MS illumination
Fuero juzgo: 1241 illumination, MS 82 Biblioteca Nacional, Madrid

When the Moors invaded the Iberian peninsula in 711 AD, the legislative and political unity of Visigothic Spain was shattered, but Visigothic law did not disappear. The Muslim rulers of Al-Andalus, as Moorish Iberia was called, allowed Christian and Jewish inhabitants to maintain religious and legal autonomy in civil matters within their own communities. At the same time, a small number of Christians who successfully resisted the Muslim invasion retreated to the northern edges of Iberia and launched a territorial reconquest from these strongholds. This military effort finally resulted in the complete expulsion of the Moors from the peninsula with the fall of Granada in 1492. Through seven centuries of Reconquest, Spanish Christians established new kingdoms and municipalities that restored the principles of the Visigothic law embodied in the Fuero Juzgo, with its Germanic and Roman elements, and incorporated them into local customs and charters as well as the fueros generales, or general bodies of law.

Libro de los Juegos
Alfonso X, Libro de los Juegos: 1283 illumination, MS T.I.6 Biblioteca de El Escorial, Madrid

This was the case in the kingdom of Castile, where Alfonso the Wise issued the Fuero Real in 1255 AD, which brought legal uniformity to the fueros and customs across Castile. A decade later he promulgated the Siete Partidas, which combined existing Spanish law with Roman law and canon law into the most comprehensive and influential legal compilation of the middle ages. Spain’s evolution into an imperial power after 1492, with Castile as the center of royal authority, meant that Castilian law would become the law of Spanish colonial territories as well. The medieval Spanish codes remained the principal sources of law for Latin America even through the establishment of modern national civil codes in the nineteenth century. It was in this way that Roman and Visigothic legal traditions that developed in medieval Spain would become the legal heritage of California, as a territory first of Spain and then Mexico.

Codices legum Visigothorum

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Codices legum VisigothorumThe Visigothic code promulgated in 654 AD became known by many names including Lex Visigothorum, Liber Iudiciorum, or Book of Judges, as it was called in the oldest known copy of the code, and Forum Iudicum, or Fuero Juzgo in its later Castilian form. Carrying forward Germanic customs first codified by Euric, the Fuero Juzgo notably upheld property and inheritance rights for women that did not exist in Roman law. Though the Fuero Juzgo was reproduced for centuries in manuscript forms, this 1579 Latin edition, published in Paris by Pierre Pithou as the Codices legum Wisigothorum, libri XII, is the first printed edition.

Fuero Juzgo

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Fuero JuzgoThough the first print edition of the Fuero Juzgo from 1579 was in Latin, the code was translated into Castilian Spanish in the thirteenth century by Ferdinand III, the father of Alfonso the Wise and his precursor in the important legislative projects of thirteenth-century Castile. The legislative and intellectual projects of Ferdinand and Alfonso were essential in standardizing and establishing medieval Castilian as a language of advanced learning and the foundation of modern Spanish. Ferdinand’s enactment of the Fuero Juzgo in Castile in 1241 affirmed its centrality to Castilian law, and the Ordenamiento de Alcalá in 1348 confirmed its preeminence over the Siete Partidas in legal questions. This 1815 critical edition was published by the Spanish Royal Academy, which was founded in 1713 to establish and protect the standards of the Spanish language.

Fuero Viejo de Castilla

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Fuero Viejo de CastillaThe proliferation during the Reconquest of diverse rights and privileges granted to municipalities and feudal lords through local fueros posed a challenge to royal authority. The Fuero Viejo de Castilla was a private compilation of local laws and fueros, mostly pertaining to the rights of nobles, produced in response to Alfonso VIII’s attempt in the early thirteenth century to limit noble privilege. Though the Fuero Viejo was never royally sanctioned, its validity as a legal text was acknowledged in the Ordenamiento de Alcalá. Its contents provide insight into the social structures and legal customs of medieval Castile, including questions of feudal and criminal law, judicial procedure, family law and property law.

Siete Partidas

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Siete PartidasOriginally called the Libro de las leyes, Alfonso the Wise's monumental work know as the Siete Partidas was heavily influenced by the compilation of Justinian, reflecting the rediscovery of Roman law and the development of medieval civil law tradition that flourished across Europe. However, the complation also incorporates local customs and Castilian fueros as well as principles of canon law and Islamic law. Comprehensive in scope and lauded as the most important compilation of medieval law in Europe, the Siete Partidas became the principle source for civil law throughout the Spanish Empire and played an important role in the development of Latin American law. This 1550 edition includes the renowned commentary of jurist and royal official Alfonso Díaz de Montalvo, which first appeared in 1491.

Scholia ad leges regias styli (Leyes de estilo)

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Scholia ad leges regias styli (Leyes de estilo)Also known as the Declaración de las Leyes del Fuero, the Leyes de Estilo, produced around 1310 AD, were a collection of 252 laws intended to supplement as well as clarify the procedure and application of specific provisions of the Fuero Real and the Siete Partidas. Produced by a private group of jurists rather than the Castilian crown, this collection highlights the ongoing challenge in Medieval Spain to correctly apply multiple authoritative sources of law. The Castilian crown addressed this problem a few decades later with the 1348 Ordenamiento de Alcalá, a set of laws which established an order of legal precedence for the existing bodies of law. The Ordenamiento de Alcalá gave first precedence to the Alcalá decrees themselves, followed by the Visigothic Fuero Juzgo, the Fuero Real and local fueros, and then the Siete Partidas.

Leyes de Toro

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Leyes de ToroThe Leyes de Toro were initiated by Ferdinand of Aragon and Isabella of Castile and finalized in the city of Toro in 1505 after Isabella’s death. This collection of eighty-three laws, like earlier compilations, sought to rationalize and supplement the sources of existing law. With their marriage in 1479 joining the Spanish kingdoms, Ferdinand and Isabel centralized royal power, pursuing legislative reforms to resolve questions caused by the diversity of authoritative legal sources and attempting to limit their number. A product of this legislative impulse, the Leyes de Toro were, as the work’s subtitle states, a collection of “laws and new decisions…on the doubts of law that often occurred and occur in these kingdoms.” New laws in the work centered on questions of succession and inheritance and provided the first legislation related to mayorazgo/s, or primogeniture, and the entailment of estates.