Fuero
As Fueros incurred in the Middle Ages and into modern times applicable laws of the various Christian kingdoms on the Iberian peninsula and arisings also at this time local privilege are referred.
Regional special law still in force in Spain today, which goes back to these Fueros , is known as derecho foral (Foral law).
Historical framework
After the Moorish invasion of the Strait of Gibraltar (711), almost the entire Iberian Peninsula came under Islamic rule in the following years . Christian princes were only able to maintain their rule in the far north. In the Cantabrian Mountains , this was the Kingdom of Asturias , from which the kingdoms of León , Castile , Castile-León and finally the Crown of Castile (and also the Kingdom of Portugal) developed. On the southern slopes of the Pyrenees , smaller counties ( Spanish Marks ) emerged under Franconian influence , which formed the nucleus for the Kingdom of Navarre and the Kingdom of Aragon .
In the centuries that followed, these Christian empires expanded their domain more and more to the south ( Reconquista ), until finally in 1492 with the conquest of the Kingdom of Granada , the last Islamic domain still remaining on the peninsula fell to Castile.
The two great Christian empires themselves consisted of partial kingdoms (the Crown of Castile in particular from the kingdoms of Castile and León, the Crown of Aragon from the Kingdom of Aragon , Catalonia , the Kingdom of Mallorca and the Kingdom of Valencia ) with their own legal systems and institutions.
When King Charles I took over the government , the crowns of Castile and Aragon were united. From a legal point of view, however, it was just a personal union and the individual parts of the empire retained their own legal systems and institutions.
This only changed when, after the War of the Spanish Succession, the Bourbon King Philip V with the Decretos de Nueva Planta (1707–1714) largely replaced the law in force in the areas of the Crown of Aragon with that in Castile.
Local Fueros and Fueros Generales
From the 9th to the 11th century, the sparsely populated northern Meseta in particular came under the rule of the kingdoms of Castile and León. In order to win new settlers for these areas on the border with Islamic Spain, the rulers often granted individual localities and rulers privileges, which were known as Cartas Pueblas or Fueros . In addition, the customary law that existed in individual areas was also fixed in such füros .
Such local fueros played less of a role in the advance of the Christian empires in the southern part of the peninsula from the 12th century, as this was more densely populated and the rulers now relied more on the orders of knights and the high nobility than on local settlers.
In the 13th century, the general and not only locally applicable law in the Christian empires was fixed in writing. These were the Fueros Generales (e.g. the Fueros Generales de Navarra , the Fuero Juzgo in Castile, the Fueros de Aragón in the Kingdom of Aragón, the Furs de València in the Kingdom of Valencia or the Constitucions de Catalunya in Catalonia).
The Fueros contained civil law regulations as well as public law and criminal law.
After King Charles I took office , all of today's Spain was united under one ruler. Legally, however, it was only a personal union. The legal systems of the partial kingdoms ( Fueros Generales ) retained their validity and their own institutions (such as the assemblies of the estates) remained in place.
In the Kingdom of Aragon, the Cortes (assembly of estates) had a stronger position vis-à-vis the monarch than in Castile. The Fueros represented a kind of pact between the monarch and his subjects. This was expressed during the swearing in of the new kings of Aragon. After the king had sworn the oath, the Justicia de Aragón said: Te hacemos Rey si cumples nuestros Fueros y los haces cumplir, si no, no (We will make you king if you respect our rights and make sure that they are observed when not - not.) Only then did the subjects swear their oath of allegiance to the king.
The Fueros have lost their importance since the 18th century
After the Spanish line of the House of Habsburg died out , the War of the Spanish Succession (1700–1714) broke out. In this, the territories of the Crown of Castile stood on the side of the Bourbon pretender to the throne Philip (then Philip V of Spain), the territories of the Crown of Aragon, however, on the side of the Habsburg candidate Archduke Charles (later Emperor Charles VI.). The war on Spanish territory did not end until September 11, 1714 with the capture of Barcelona by Philip V's troops.
Following the French model, the victor Philip V managed the centralization of the state. With the Decretos de Nueva Planta (1707–1716) he eliminated the own institutions of the territories of the Crown of Aragón (Aragón, Catalonia, Mallorca and Valencia) and replaced the law applicable there as far as possible with the Castilian law, whereby - except in Valencia - the civil law formal norms were not affected.
The fueros of the three Basque provinces and Navarra (which had sided with the Bourbons in the War of Succession) were also not eliminated. After the Carlist Wars , however, only a special financial autonomy remained of these fueros.
For the provinces of Guipúzcoa and Vizcaya (which had been on the republican side in the Spanish Civil War ), Franco also revoked this financial autonomy, while it was retained in Navarre and the province of Álava (which had been on the side of the putschists).
Foralrecht today
Public law
With the constitution of the Kingdom of Spain of 1978, the "historical rights" of these troal areas (Navarra, Guipúzcoa, Vizcaya and Álava) were recognized again.
Based on the 1978 constitution, the Spanish political system was decentralized to a considerable extent. 17 autonomous communities (regions) emerged. Formally , these are not member states , but their scope of competence has been comparable with the German federal states since the 1990s and in particular they have extensive legislative powers.
The province of Navarre formed its own uniprovincial autonomous community, the three Basque provinces of Guipúzcoa, Vizcaya and Álava formed the autonomous community of the Basque Country . In the Basque Country, however, the “historical rights” guaranteed by the constitution are the three provinces and not the autonomous community.
In the area of public law, formal law is particularly important for financial relations with the central government. While the general system (régimen común) applies to the rest of the autonomous communities, the foral system (régimen foral) applies to the foral areas.
In the régimen común , tax legislation essentially lies with the central government. The latter also collects the taxes through its tax offices and then pays part of this (e.g. 50% of the income tax) to the autonomous communities. In the régimen foral, on the other hand, the tax legislation lies essentially in the foral areas (i.e. the Autonomous Community of Navarre and the three Basque provinces). These collect taxes through their own tax offices and pay the state a portion (the cupo ) that is periodically negotiated with the central government .
This results in another peculiarity for the Basque provinces. In the remaining Autonomous Communities, which consist of several provinces, the provincial administrations (diputaciones provinciales) are organs of local self-government. Their provincial councils are determined by indirect election based on the results of the municipal council elections. In addition to their self-governing tasks, the Basque provinces also exercise a quasi-legislative competence (especially in the area of tax law, see above). Their provincial councils (Juntas Generales) are directly elected.
After the Constitution of 1978 came into force, the Autonomous Communities were constituted through the adoption of their Statute of Autonomy (a kind of "constitution"), which was finally passed by the two chambers of the Spanish Parliament ( Cortes Generales ) in a regular legislative process. Navarre was the only foral area that constituted itself as an autonomous community (the three Basque provinces formed the Basque Country Autonomous Community on the "regular" route). In the case of Navarre, the special features of formal law were therefore already evident in the “constitutional process”, which differs significantly from that of the other 16 autonomous communities. Navarre decided to reform its formal system, which was based on two laws from 1839 and 1841. The “Statute of Autonomy” of Navarre is the Ley Orgánica 13/1982, de 10 de agosto, de Reintegración y Amejoramiento del Régimen Foral de Navarra (LORAFNA). The title itself emphasizes historical continuity more than with the other Autonomous Communities; it is not a completely new foundation, but merely the reform of something that already exists. The law of 1839 stipulated that any change to the Fueros (i.e. the regional special law) would require the approval of the central state and the Navarre region, i.e. it would have the character of a treaty to a certain extent. The law of 1841 based on it is also known as Ley Paccionada ("the negotiated law"). This contractual character can also be found in the legislative procedure on the LORAFNA: First, the central government and the Diputación Foral (the regional government) agreed on a joint draft, which the regional parliament and the two chambers of the whole of Spain parliament each in only one reading without the possibility of Proposals for amendment were dealt with, which corresponds more to the ratification of an international treaty than to the usual legislative procedure. The LORAFNA also provides this procedure for subsequent changes to its text.
Civil law
With the Decretos de Nueva Planta , the civil law in force in the areas of the Crown of Aragón was left untouched and thus continued to apply as formal law in Catalonia, Aragón and the Balearic Islands. Only for the Kingdom of Valencia, with the Decretos de Nueva Planta , was the previously applicable civil law repealed and replaced by that of Castile. The restriction of the Fueros of the Basque provinces and Navarre after the Carlist Wars also left the civil law applicable there untouched.
In 1889 the first Spanish Civil Code ( Código Civil ) came into force. This also determined that the foral civil law continued to apply in the areas in which it still existed at the time (i.e. Catalonia, Aragon, Balearic Islands, Basque Country and Navarre). The Código Civil was therefore only valid in these regions insofar as it did not contradict the local formal law or in addition to the extent that it contained no corresponding regulations.
The still applicable civil law was subsequently codified:
- Catalonia : The first recodification took place through a law of July 21, 1960, later through laws of the Autonomous Community of 1984 and 2002.
- Aragon : The first recodification took place in 1925 as an appendix to the Código Civil . Numerous changes were made later. A complete revision took place in 2011 with the regional law Código del Derecho Foral de Aragón .
- Balearic Islands : The first recoding took place through a law of April 19, 1961, a later one through a law of the Autonomous Community of 1990. The formal law is not uniform, but the law contains special provisions for Mallorca , Menorca and Ibiza - Formentera .
- Basque Country : The first recodification took place through a law of 30 July 1959, a later one through a law of the Autonomous Community of 1994. In the Basque Country, too, there is no uniform civil law, but the current law is divided into three books:
- The Fuero de Vizcaya applies in the rural areas of the province of Vizcaya ("tierra llana") and in two municipalities in the province of Álava.
- The Fuero de Ayala applies in the municipalities of Ayala , Amurrio and Okondo as well as in several districts of the city of Artziniega (all in the province of Álava).
- The Fuero de Guipúzcoa applies in the province of Guipúzcoa.
- In the other areas (especially in the urban areas of the Province of Vizcaya and most of the Province of Álava), the Código Civil applies without restrictions.
- Navarre : The new codification took place through a law of March 1, 1973 (the Fuero Nuevo ).
This civil formal law only contains provisions that differ from the Código Civil in certain areas. Above all, there are inheritance, family and property law regulations, especially with regard to agricultural property.
The legislative competence for changes to civil law lies with the respective autonomous communities.
A special case is Galicia , which historically did not have a Fuero General , but where certain elements of customary law were retained even after the Código Civil came into force . These were first codified by a law of December 2, 1963, which was replaced by a regional law in 1995. The same applies to the Valencia region (whose civil law was repealed with the Decretos de Nueva Planta ). Although there is no comprehensive codification of special law in this region, the Autonomous Community has passed some individual civil law laws. In both cases it is not a question of formal law in the strict sense of the word (Galicia had no Fueros Generales, the Valencias were repealed with the Decretos de Nueva Planta ). Nonetheless, civil law is often used in relation to these two regions.
Another special case is the Fuero del Baylío . This is not fixed in writing, but is unwritten customary law on matrimonial property law, which is applied in some communities in Extremadura on the border with Portugal and the Spanish exclave of Ceuta (in North Africa, formerly part of Portugal).
Individual evidence
- ^ El Justicia de Aragón. (pdf) El Justicia de Aragón, 2008, accessed March 23, 2015 (Spanish).
literature
- Rainer Becker: Foral rights and codification in Spanish private law. A study on the standardization of law between the War of the Spanish Succession and the Código Civil of 1889 . Gregor Brand Verlag, Nortorf 1996, ISBN 3-925106-07-3 , p. 73.
- Peter Stadler: Interregional law in Spain. Presentation with special consideration of matrimonial property and inheritance law . Verlag Peter Lang, Frankfurt am Main 2008, ISBN 978-3-631-57752-3 , pp. 3–9, in particular pp. 7–9: Unification in civil law - the “formal question” .