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The Catalan Legal Tradition (The Value of Interpretation and the Weight of History)

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SPANISH JOURNAL OF LEGISLATIVE STUDIES ISSN 2695-5792 2019. Artículo 2 THE CATALAN LEGAL TRADITION (THE VALUE OF INTERPRETATION AND THE WEIGHT OF HISTORY) Dr. José María Pérez Collados Professor of History of Law at the University of Girona Correspondence: [email protected] Received: 1.9.2019 Accepted: 1.10.2019 How to cite this paper Pérez Collados, Jose María (2019): The catalan tradition (the value of interpretation and the wei- ght of history). Spanish Journal of Legislative Studies. (1), p1-40. DOI: https://doi.org/10.21134/ sjls.v0i1.1707 THE CATALAN LEGAL TRADITION (THE VALUE OF INTERPRETATION AND THE WEIGHT OF HISTORY) Dr. José María Pérez Collados INTRODUCTION: THE LEGAL RE- mitation to a possible indiscriminate allegation of LEVANCE OF AN INDETERMINATE the Catalan legal tradition.’ LEGAL CONCEPT: THE CATALAN In other words, as article 111-1 affirms, the LEGAL TRADITION general principles of law are considered to be a legislative source with a dual-purpose integrative On 30th December 2002 the Catalan Parlia- function: on the one hand, they avoid heteroin- ment promulgated the first law of the Civil Code tegration, and on the other hand, they impede of Catalonia1. Its main objective, as stated in the ‘a possible indiscriminate allegation of the Ca- preamble, is to ‘establish the structure, the basic talan legal tradition’. The Catalan legal tradition, content and the procedural processes of the Civil therefore, appears in the Civil Code of Catalonia Code of Catalonia’. This law also introduced the accompanied by a certain mistrust, and given a first of the six books that were to set out the Ca- value which defines but also limits it, claiming a talan Civil Code. possible ‘indiscriminate allegation’ which, whilst In this first book, which deals with the General very Catalan, is still disconcerting. Dispositions, there is an article, number 111-22, This is certainly not the tenor that regulates found under the heading ‘Interpretation and Inte- the concept in the Legislative Decree 1/1984 of gration’, which in its second paragraph states: In the 19th June, which approved the Revised Text of its application, the civil law of Catalonia must be the Compilation of Civil Law of Catalonia. Article interpreted and integrated in accordance with the 1-2 of this documents reads: ‘when interpreting general principles that inform it, taking the Cata- and integrating this Compilation and the rest of lan legal tradition into consideration. the regulations, the laws, customs, jurispruden- A concept appears, that of the Catalan legal ce and doctrine that constitute the Catalan legal tradition, which is given an integrative and inter- tradition will be taken into consideration in accor- pretative value. The idea is most novel: the legal dance with the general principles that inspire the tradition of the country, of the territory, becomes legal system of Catalonia’. a criterion of legislative integration and interpreta- Taking this further, Article 1 of the law of 21st tion. This approach most certainly has no equiva- July 1960, which approved the Compilation of Ci- lent in other civil codes: it is truly original. vil Law of Catalonia, recognised the Catalan legal Our curiosity is further aroused as we continue tradition as the only interpretative criteria of the to read the preamble of the law and, with respect Compilation, making no reference at all to general to this article, we find: ‘The regulation recognises principles of the Catalan system of civil law with in the general principles of law their function of which the tradition should be combined when it self-integration into the civil law of Catalonia, as is integrated and interpreted. It reads thus: ‘In or- a means to avoid heterointegration by applying der to interpret the precepts of this Compilation, supplementary law, and their importance as a li- the Catalan legal tradition, which is represented 1BOE [Official State Gazette], no. 32, 6th February 2003, pp. 4912-4918. It must be noted that the Constitutional Tribunal decla- red admissible, by judicial order dated 20th May 2003, the appeal of unconstitutionality no. 2099/2003 brought against this law by the Presidency of the Government. 2The numbering system of this code is made up of two figures separated by a hyphen. The first of these has three numbers, which refer to the relevant Book, title and chapter respectively. The second figure refers to the article of the chapter in question. Spanish Journal of Legislative Studies, Núm. 1, 2, pp. 1-40. THE CATALAN LEGAL TRADITION (THE VALUE OF INTERPRETATION AND THE WEIGHT OF HISTORY) Dr. José María Pérez Collados in the old laws, customs and doctrine from which wherever possible, appeal to other sources of le- these precepts are derived, will be taken into con- gislation, including the Civil Code, has declined. sideration.’ With no Parliament of its own, Catalonia had The concept Catalan legal tradition thus pas- had to pursue a different policy, and while accep- ses from being the sole interpretative criteria of ting that considering legal writing to be a source Catalan civil law (in the Compilation of 1960) to of law is incompatible with the constitutional or- sharing both this role and that of integration with der, ‘if afterwards we do not recognise the doctri- the general principles of the Catalan legal system nes of Catalan authors and their legal writing as (Revised Text of the Compilation of Civil Law of sources of law, it will be impossible to deny them Catalonia of 1984), and ends up being mere resi- interpretative power for laws when questions ari- dual interpretative criterion as stated in the first se about the true understanding of a particular law of the Civil Code of Catalonia. institution and its effects’4. In our opinion, this evolution is due to the fact Nowadays, the importance of the hermeneu- that hermeneutic rules pertain more to Compi- tic concept Catalan legal tradition is declining gi- lations and Recompilations than to Codes given ven that there is now a Catalan Parliament that that the latter, which attempt to regulate a sec- constantly modifies and updates the nation’s civil tor of the legal system ex novo, tend to mistrust laws. It is within this more peaceful context5 that history and traditional legal thinking, preferring to we would like to reflect upon the value of the entrust all of their meaning to the literal tenor of concept Catalan legal tradition as it evolved from the regulations. the nineteenth century onwards and in relation to Regarding the systematisation of the Codes, the emergence of what would become known as ‘in the compilations cohesion is achieved by in- the Catalan Legal School. terpreting diverse precepts according to identical principles. For this, hermeneutic rules cannot be disregarded’3. Thus, as Catalonia gains greater I. THE CONCEPT OF LEGAL degrees of self-government and recovers its own TRADITION IN CATALONIA Parliament it faces the challenge of codifying its civil law and, as a consequence, the role of the Before the law (source of Spanish national hermeneutic rules changes. law), jurists of the Catalan Legal School6 conside- Now with the Parliament as the legitimate red custom to be the only source of law characte- source of law in Catalonia, the former need to ristic of free nations: establish an interpretative system that eluded, 3Enrique JARDY CASANY: ‘Regarding the hermeneutic rule of article 1 of the Compilation of civil law in Catalonia’, in Revista Jurídica de Cataluña, LX-1, 1960, p. 17. 4Manuel DURÁN I BAS: Memoria acerca de las instituciones del Derecho civil de Cataluña,Barcelona, 1883. I cite from the facsímile edition published in the Collection of Catalan Legal Texts. t. 10, Projecte d’Apèndix i Materials Precompilatoris del Dret Civil de Catalunya, p. 11. 5An example of a more troublesome stance is that of Jesús LALINDE ABADÍA in 1961. Cf. his work ‘Study of article 1 of the Compilation of Civil Law specifically for Catalonia (Historical School of Law)’ in Revista Jurídica de Cataluña, LX-1, 1961, pp. 249-272. Spanish Journal of Legislative Studies, Núm. 1, 2, pp. 1-40. THE CATALAN LEGAL TRADITION (THE VALUE OF INTERPRETATION AND THE WEIGHT OF HISTORY) Dr. José María Pérez Collados Peoples who believe in the omniscience and the Knowing the text of the dispositions is not enough omnipotence of the State are those that only see to understand Catalan law in its true sense. One law in the positive law dictated by the State, and must look closely at the centuries-old interpreta- they are always its slave, whether its sovereignty tion that others have received. The Romans were is in the hands of a king, of an oligarchy or of a right when they said ‘Optima legum interpres est democracy. Because peoples who believe in social consuetudo’, and it would not be appropriate for forces as determinants of the State of law in which an attorney-at-law to insist on studying our muni- they are constituted put everything into these social cipal law by reading its laws and interpreting them forces and they do not fear the law which is dictated according to his own criteria. This attempt, which by the people through custom. These are the peo- has been observed for some time, this tendency ples who are truly free7. to move away from interpretation sanctioned by custom simply leads to introducing anarchy into the However, what is really novel about the thin- law. Individual reason, wherever it is applied, will king of the Catalan Legal School is their view that always produce the same results9. custom, as a fundamental source of law, shapes a type of legal writing that is considered to be Catalan law, therefore, can be defined as a the essential source of law in the legal system of customary and doctrinal law which interprets le- Catalonia.
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