STEPHEN JACOBSON

FORUM:
CATALAN NATIONALISM AND CIVIL CODIFICATION IN NINETEENTH-CENTURY EUROPE

Law and Nationalism in Nineteenth-Century Europe: The Case of Catalonia in Comparative Perspective

By the close of the nineteenth century, most continental Europeans tacitly accepted, if they thought about it at all, the notion that a civil code governed multiple personal and familial relationships in their daily lives. Like so many legislative structures, intellectual suppositions, and cultural artifacts, what was once regarded as a novel or even a major break with the past came to be understood as one of the many requisites of modernity. Contemporary historians have adopted a similarly indifferent posture, their curiosity only piqued when encountering specific provisions entangled with other political issues. In a strikingly dissimilar approach to that adopted toward penal law, they have been disinclined to explore the relationship between civil legal endeavor and political culture or the history of ideas. Only with respect to Germany have scholars considered these topics worthy of in-depth analysis; in so doing, they have demonstrated that understanding juridical culture is fundamental to appreciating the textures and peculiarities of the liberal nation state.¹ Spain, and in particular Catalonia, also provides an attractive setting for adopting a similar perspective. Here, the move toward codification of the civil law became intertwined with proto-nationalistic political controversies concerning the relationship between the region of Catalonia and the state of Spain. With respect to Catalonia, the historian has not had the luxury to take for granted outcomes with respect to the civil law. 1

     From a comparative perspective, there are weighty reasons to regard Catalonia's legal history with curiosity, simply because it was one of the few places in Europe, outside of Great Britain, that resisted civil law codification during the nineteenth century. In Catalonia the Spanish Civil Code (1889) was applied only as a "supplement," while Catalan law remained uncodified until the late date of 1960. A dynamic juridical movement, centered in the historic capital of Barcelona, succeeded in preserving Catalan civil law, deemed to account for the region's distinctive social makeup, economic success, and even spiritual personality. Examining what transpired in Catalonia not only allows us to explore an interesting species of juridical regionalism or even nationalism, but it also opens a window for observing the implicit and explicit relationship between law and identity in Europe as a whole. By using Catalonia as a case study, this article argues that the making of any legal tradition was a subjective undertaking, fraught with ideological considerations, borrowed ideas, and discursive conceptions of the nation. 2

     Catalan civil law's remarkable durability and continued vitality may not seem unusual to those versed in the legal history of medieval or early modern Europe. Located in the northeast corner of the Iberian Peninsula, wedged between the Mediterranean and the Pyrenees, this former principality, an "autonomous community" within Spain since 1978, possessed a distinguished commercial and constitutionalist juridical tradition renowned throughout the continent. The Usatges (second half of the eleventh century), one of the first charters of local feudal law anywhere, prompted one early twentieth-century scholar to boast that it predated the Magna Carta by almost a century and a half.² The Consolat del Mar (1260–1270), written in Catalan and subsequently translated into six other languages, was a classic. Undoubtedly the most influential text in Iberian history, it had been the leading mercantile law compilation for centuries, used in commercial tribunals throughout the world, paralleling the importance of Justinian's Institutes to private law, the Libri Feudorum to feudal law, or the Decretals to canon law.³ The medieval principality also housed a notable collection of municipal law, the most famous being the Customs de Tortosa (1272–1279). Even following the union of the crowns of Castile-León and Aragón-Catalonia in 1479, Catalonia maintained its distinguished jurisprudential tradition: a learned and internationally renowned corps of jurists remained vital to the daily functioning of an intricate constitutionalist arrangement between crown, principality, and municipality.⁴ 3

     Despite this venerated past, it was never clear that this antiquated tradition would survive the challenges of modernity. The formal beginning of its decline can be conveniently traced to 1716, when Philip V, Spain's first Bourbon monarch, grandson of Louis XIV, promulgated the "New Order" (Nueva Planta), a document of far-reaching and enduring consequences that obviated Catalonia's legal status as a separate principality within the crown. The New Order dissolved all Catalan political bodies, abolished its public law, and prohibited Catalan language for use in court or official business. It preserved private law but left it in a precarious situation, literally frozen in time. The abolition of legislative forums meant that all new law had to come from Madrid, capital of the monarchy, which in turn signified that Catalonia's legal corpus was destined to become progressively overrun and increasingly outdated. Throughout the eighteenth century and well into the nineteenth, its legal regime remained at a crossroads, much of its nonessential provisions sliding into disuse. In retrospect, its survival was remarkable, the result of an intense movement of intellectual recuperation and modernization, backed by political defense. Its preservation came to serve as the prelude to a larger crescendo. It lent credence to the more radical demand of administrative decentralization and ultimately home rule, foreshadowing the appearance of nationalist electoral politics. 4

     Before examining the relationship between law and identity in Catalonia and Europe as a whole, three methodological considerations deserve explicit mention. First, the seemingly obvious and innocent proposition that politics affected law, and vice-versa, forces us to deviate from orthodox approaches to the field of comparative law, which have limited themselves to expounding and repeating seminal influences and sources of dominant legal traditions. Many authors have relegated social and political factors to a second tier, operating under the elitist assumption that only prestigious scholarship conditions legal evolution.⁵ Even more restrictive, comparativists have ignored the experiences of smaller countries and regions, such as Catalonia. As a result, today we find ourselves in the dark with respect to some key present-day happenings. For example, the disintegration of the ex-Soviet Union and Yugoslavia has been accompanied by an overhaul of civil law systems in the new republics. Legal devolution, in various forms, is a topical issue within what is becoming known as "Europe of the Regions," in places such as Scotland, Wales, Brittany, Corsica, South Tyrol, Cyprus, and the Basque Country. Meanwhile, talk of promulgating a "European Civil Code" seeps forth from Brussels.⁶ At the present time, neither the historian of nationalism nor of law has the proper tools to appreciate the political significance of these tendencies. 5

     Second, proper historical analysis must reject the assumptions of a few neo-romanticist lawyers and publicists who have depicted Catalan law as an integral and immovable feature of society, heroically preserved by unselfish, erudite, and patriotic jurists, when it was not autonomously carrying on its triumphal march by means of its own teleological instincts.⁷ The survival of Catalan law was, in the very least, uncommon, especially given that many similar traditions disappeared in the onslaught of national civil codes, much as local languages and dialects also degenerated when confronted with vigorously promoted, state-sponsored oral and literary cultures. Yet, the mere existence of an intellectually sophisticated juridical, like a political or a linguistic, tradition ensures neither vitality nor longevity; rather, individual actors, living under specific conditions and laboring amid identifiable pressures and incentives, often make use of, reconstruct, and manipulate a sacred past to justify and adorn contemporary endeavor.⁸ Rather than commemorating past glories, we will concentrate on the political implications of the rehabilitation of a juridical tradition rooted in the middle ages, Fluorescent in the early modern period, decadent in the eighteenth century, and revived in the nineteenth. 6

     Finally, we should not assume that the study of Catalonia only helps us to understand "little" traditions or solely "peripheral" nationalisms. Although living on a peninsula, Catalans did not work in a vacuum. They engaged outside sources and systems, buttressed their claims through metaphorical association to other countries, and employed and molded some of the major theoretical constructs of the time: French positivism, English constitutionalism, and German historicism. In the process, they uncovered and further expounded juridical theories that related legal characteristics to concepts such as "spirit," "custom," and "nation," a procedure first introduced by Montesquieu and later omnipresent within the writings of scholarly and hack authors alike. As a result, many ideas considered innovative in nineteenth-century Europe, now diffused into generalizations concerning the law, are brought forth for reexamination. Examining the symbolic import that law acquired in Catalonia allows us to gain a better perspective on the relationship between nationalism and civil law in Europe as a whole. 7

Nationalism and Civil Law Codification in Europe, Spain, and Catalonia

The frequency with which European legislators transplanted laws, institutions, and even comprehensive systems suggests that a comparative perspective should be helpful.⁹ The basic outlines of the codification process in Spain as in the rest of Europe are well known. The French Civil Code of 1804, at times called the "Napoleonic Code," served as the prototype until the German Bürgerliches Gesetzbuch (1900), colloquially known as the "BGB," challenged its preeminence. Between the publication of these two veritable paradigms, statesmen guided their countries down a secure and well-trodden path toward civil unity. Ministries of justice assembled commissions of codification, composed of expert, dispassionate, supposedly ideologically neutral, jurists, who adapted the French Code and other elements of continental legal science to the peculiarities of a country's most influential or widely accepted customs and the specifics of its juridical traditions. Spain proved the exception to this tendency, unable to achieve civil unity through a depoliticization of juridical discourse. Instead, the move toward codification sparked intense public debate, especially in Barcelona. The Spanish Civil Code (1889), although clearly a member of the French family, was the first to sanction the idea of legal diversity, preserving separate legal regimes in Catalonia and other regions as well.¹⁰ 8

     Modern legal borrowing did not promote an internationalization of juridical norms or the generalized use of a canonized genre of shared texts. Instead it provided a number of concepts whose permutations proved endless and, when mixed with customary law and procedure, culturally specific. As opposed to earlier times, when the ius commune constituted a "common law" of Europe, the nineteenth century was an age of national codifications.¹¹ The ideal of a cohesive nation state was implicit in the scope of a civil code. To be French, Dutch, German, or Italian meant, among other things, to live under the same regime of civil laws as one's countrymen, young and old, male and female, from birth until death. Often contained in a single volume, or at most two, a civil code defined what Benedict Anderson has denominated an "imagined community."¹² Together with grammar books, maps, encyclopedias, newspapers, history primers, and other printed material, it served to establish and reify common culture, language, and law. Its leveling effect helped create "egalitarian expectations" and foster "cultural hegemony,"¹³ to borrow Ernest Gellner's expressions. In addition, it transformed individual behavior and private family life to conform to a uniform set of practices to a greater extent than any other single printed document. It was literally the bible of advocates, proctors, notaries, property registrars, judges, judicial clerks, and court secretaries who disseminated its provisions through professional practice within a centralized judiciary, equipped with coercive powers of sanction and reward. Each individual was confident that the same rules for legitimacy, adoption, citizenship, emancipation, marriage, separation, divorce, contract, ownership, tenancy, wills, and successions simultaneously applied not only to one's neighbor but to millions of anonymous citizens as well. 9

     It was not only in Spain that civil law reform collided with nationalistic sentiment. In countries where scholars hesistated to equate French innovation with modernity, such efforts often touched a patriotic nerve. In Great Britain, an early nineteenth-century Benthamite codification proposal, emerging out of the Scottish as much as the French philosophical tradition, attracted few proponents. Barristers and solicitors faithfully stood by the English common law, crediting it with promoting liberty, cultivating ingenuity, and providing flexibility for economic ascendance.¹⁴ In the German states, opinions divided over codification, but both sides appealed to notions of Germanness to support their respective positions. To many liberal nationalists, a uniform code would promote unity among Germans, while conservatives and traditional jurists argued that its inherent inelasticity would hamper law's natural capacity to evolve in harmony with the spirit of the people ("Volksgeist"). Juridical elite did not achieve consensus concerning the form and content of the BGB until well after political unification and the rise of Pandectism (or until liberals had come to terms with the Volksgeist, and conservatives with the idea of national unification), but representatives of rival schools of thought--whether partial to the Roman law, natural law, or Germanic customs--could at least agree that a future code should not emulate French precedent.¹⁵ 10

     National rivalries also influenced lawmakers who avoided the time-consuming and complicated enterprise of modernizing a native tradition by borrowing and modifying a more complete and defeudalized one. Decisions over which country's legislative models to emulate, as well as which ones to disregard or expunge, were partially dependent on images of exemplars and rivals. In Italy, for example, the French Civil Code and the Austrian General Code of 1812 (the "ABGB"), the other influential code of the nineteenth century, had conditioned legal practice in different parts of the Peninsula. Italian framers modeled the Civil Code of 1865 after that of their French neighbor, a decision not unrelated to the fact that Bonapartist France--despite the occupation of Rome--was generally an ally during the wars of Italian unification, while Austria, still occupying Veneto when the code was approved, was simply the enemy. Similar considerations influenced Latin America, where the prestige of French formulae stemmed from the fact that the French Revolution had inspired independence while Spain was regarded as a former colonial power. The Japanese Code of 1898 represented the first reception of the BGB, because Meiji elite held German legislative science in high regard.¹⁶ Nationalist considerations, in one form or another, were omnipresent within the codification process, and, save the notable exception of Spain, the principle of civil unity was sacrosanct. 11

     In Spain, issues of identity were also explicit, but multiple regional identities competed with an overarching national one. On the eve of civil law codification, the country remained divided into numerous zones of private law, the origins of which stretched back to some of the former realms of the Iberian Peninsula. The legal tradition known as the Spanish "common law," not to be confused with either the ius commune or the English common law, was the most dominant. Homogenous and applicable throughout most of the country, it originally descended from the laws of the medieval kingdom of Castile-León. More fractured and diverse were various "foral laws" present in Catalonia, Galicia, Navarre, Viscaya, Aragón, and the Balearic Islands, territories that had preserved private law pursuant to complicated and antiquated union arrangements. Law in these "foral regions" was heterogeneous: each possessed its own uniform rules, but each also exhibited widespread municipal variety. Much common law was also valid in the foral regions, a circumstance further confusing an already complex relationship. This patchwork present along much of the periphery continued even after the Spanish Civil Code's promulgation. Although intellectually uninspiring, this document was unique in that it was the first code to break the trend of uniformity. Its provisions governed common law regions, but they only served as "supplementary" in foral regions.¹⁷ 12

     Catalonia's legal regime suffered few immediate structural changes from the advent of the Spanish Civil Code. Many civil code provisions came to be applied in Catalonia, but, despite what some regarded as egregious intrusions, Catalan law, with a few exceptions, retained roughly the same scope of applicability as it had possessed before codification.¹⁸ Throughout the nineteenth century, the place of law in society mirrored that of language. Catalan advocates and notaries exercised their professions in what the historian Josep Maria Fradera calls a "divided society."¹⁹ All practitioners needed to be familiar with two legal traditions--one "Castilian" and one "Catalan"--much as they generally spoke two languages of the same names. The language known as "Spanish" to those outside Spain was (and is) also referred to as "Castilian" throughout the Hispanic world. Likewise, Catalan lawyers referred to traditional Spanish common law as "Castilian law," even though it was applicable in other regions as well. Analogous situations existed elsewhere, but linguistic and legal contradictions inherent in Catalan society were the first to activate regionalist political behavior, establishing a repertoire for others to follow. Throughout the greater part of the century, Catalonia was the most industrialized and wealthiest historic community in Spain; its juridical associations were able to mobilize ample resources to publicize demands and exert pressure on politicians in Madrid. It is no exaggeration to claim that other foral regions conserved their law only because of the strength of the Catalan protest. 13

     Catalan law has continued to survive and even thrive down to the present day, proving flexible and durable, despite suffering frequent intrusions. During the dictatorships of Miguel Primo de Rivera (1923–1929) and Francisco Franco (1939–1975), both of whom imposed a moratorium on Catalan language, political activity, and patriotic symbols, its civil law stayed remarkably intact. It remained uncodified, as it had throughout the nineteenth century, until 1960, when a regime-approved commission of Catalan jurists published an official "Compilation of Civil Law," roughly equivalent to a "code" of selected family, property, and testamentary laws. Contemporary Catalonia received autonomous status pursuant to the democratic constitution of 1978, and in 1984 its government, the Generalitat, reformed and constitutionalized the Compilation, redacting it into Catalan language. In the past decade, a "Family Law Code" (1998) and a "Successions Code" (1991), along with other selected pieces of legislation, have replaced much of the Compilation.²⁰ At the present time, a Generalitat commission is in the process of drafting a full Catalan Civil Code. Today, a separate and distinct civil law is understood and taken for granted as part of the social fabric, but in the nineteenth century the fabric was still being spun, and it proved to be a very interesting weave. 14

The Defense of Civil Law and the Genesis of Catalan Nationalism

Historians of Catalan nationalism have long recognized that the quest to preserve Catalan law constituted an essential component of a series of political initiatives since recognized as celebrated "Firsts."²¹ Beginning in the 1880s, various associations participated in a common cultural enterprise and collectively opposed selected legislative measures. Valentí Almirall, the founder of the political movement known as "Catalanism," inaugurated its first organization in 1882 with the stated purpose of conserving both law and language through the foundation of autonomous political bodies. The first modern political manifesto, the Memorial de Greuges (1885), sought to protect "moral and material" interests by remonstrating against the government's plans to codify civil law and to lower tariffs protecting industry. The first display of mass politics took place following the civil code's rushed publication, when the legal profession's youthful vanguard organized a series of town meetings against Article Fifteen, a short but nasty choice-of-law provision that threatened to restrict seriously the domain of Catalan law over time. The demonstrations accomplished their goal: the government remanded the code for revisions before it could do any damage. Narcís Verdaguer, one of the protests' principal organizers and a founding father of nationalism, prophetically proclaimed the "First victory of Catalanism."²² 15

     The language employed during these controversies evidenced the penetration of many of nationalism's discursive conventions. The potent mixture of Herderian historicism paired with Montesquieu's geographical determinism flavored arguments throughout the ideological spectrum. Barcelona's federal-republican leader believed that law was "embodied in popular conscience,"²³ while its absolutist party chief agreed that it represented "the mold in which the family, the life, and the physiognomy of the Catalan people has been formed."²⁴ Valentí Almirall deduced that a "fractured and mountainous country" caused Catalans to exhibit an "egalitarian, reflexive, imaginative, rugged, and independent character," manifest in their civil law.²⁵ The bar and university's preeminent institutional representative and one of the region's most powerful politicians, Manuel Duran i Bas, equated law with "the moral identity of the Catalan people," including "respect for paternal authority, the concept of family unity . . . dignity of the widowed mother . . . personal responsibility."²⁶ The Memorial's authors counterposed Catalan law, indicative of "the positive and analytic temperament of our people, inspired by the overarching principle of civil liberty," with Castilian law, "inspired by the contrary principle, the predominance of authority."²⁷ 16

     The successful conservation of Catalan civil law propelled activists to expand their agenda to redress long-standing grievances. The radical Catalanist Student Center, seconded by the more cautious Academy of Jurisprudence, pressured Madrid for further concessions. Their demands included: reform of the uniform law school curriculum to emphasize Catalan law instruction at the University of Barcelona; eventual replacement of a judiciary largely recruited from outside the region by local judges, Fluent in the vernacular; and amendment of civil procedure rules to allow witnesses, advocates, litigants, and defendants to use Catalan language in both written and oral argument and testimony.²⁸ Although generally unsuccessful, these efforts accompanied a series of other economic, religious, and cultural initiatives, which together served to further sensitize an increasingly receptive public to the inertia of the Catalanist cause. Joan-Josep Permanyer, professor of civil law and president of the Academy in 1896, was adamant: "Nobody, absolutely nobody can be a priest of a religion he does not profess. Hence, Catalans have to be . . . those in Catalonia who administer justice and apply the law."²⁹ His colleague Joan Trias, professor of international law, echoed this sentiment, complaining that the uniform curriculum did not take into account the "historical and living reality that our country lives under the empire of its own laws."³⁰ 17

     It is important to note that the preferences of the profession's most dynamic members did not obviate dissent. The Barcelona bar never acted in unanimous accord but revealed allegiances indicative of diverse clienteles and rival political affiliations. Some of the most bitter cleavages reflected those that existed throughout southern Europe, featuring contentious matters involving church and state, or critical ownership rights disputed between peasant and landlord. Widespread disagreement also existed over origins, sources, content, and reform. First of all, not everyone defended Catalan law with the same ardor. During the Congress of Catalan Jurisprudents in 1881, a vocal minority endorsed a Ministry of Justice compromise in which Catalan law would be reduced to a short series of exceptions, inserted in the back of the code as an "appendix." Moreover, not all lawyers who opposed the Ministry's proposal considered themselves "Catalanists." Although many were unwilling to compromise the autonomy and integrity of their private legal regime, not all favored extending such claims to include public law, or, in other words, self-government. But as the century drew to a close, those who advanced collaborative, eclectic, or pragmatic strategies became increasingly identified with the clientelist and oligarchical politics of the Spanish state. Their opinions eventually yielded to the uncorrupted ideals of young lawyers who breathed fresh airs of nationalism, blowing forth from Ireland, Brittany, Poland, Serbia, and other regions as well.³¹ 18

     This fin-de-siècle generation successfully parlayed juridical concerns into a more ambitious program that included the maintenance of law, language, and culture and the revival of self-governing political bodies. In 1892, a confederation of associations and pressure groups called the Catalanist Union (Unió Catalanista), led by the law professor Permanyer and other intellectuals, drafted the Manresa Principles (Bases de Manresa), an outline of a future constitution. In 1901, the Regionalist League (Lliga Regionalista) contested elections and sent deputies to the Spanish legislature. Shortly after its foundation, a trio of young nationalist lawyers, Enric Prat de la Riba, Lluís Duran, and Francesc Cambó, all educated at the University of Barcelona and once prominent within the Student Center, rose to the peak of its leadership pyramid. 19

     The political ideology of nationalism began to make its presence sharply felt by the turn of the century. To de fine oneself as a "nationalist" in early twentieth-century Catalonia did not represent a signi ficant departure from the political program of the late nineteenth-century "Catalanists." The maximalist demand still remained self-government, also known as "home rule." However, the term "nationalism" invoked a well-known European-wide system of concepts, loosely based on the German philosophical doctrine of national self-determination, in which the "nation" was considered to be an organic and immutable spiritual whole, deserving of its own political expression, re flecting not only culture and tradition but also linguistic, ethnic, and even biological or racial characteristics. ³² Prat de la Riba's Catalan Nationality (1906) became the manifesto of this creed. Within its pages, he highlighted the importance of his law professor's teachings to his generation's awakening, employing a recognizably Herderian idiom:

20

They spoke of law as a live entity, which is spontaneously produced by national consciousness and evolves constantly. They said that law and language were both manifestations of the same national spirit. . . . Catalonia had its own law; Catalonia had its own language; it had a mysterious, national spirit that for centuries had engendered and renovated both law and language.³³

     The historical importance of Catalan law to the genesis of nationalism is undeniable. Juridical activity overlapped with the literary movement dedicated to cultural and linguistic rebirth, the "Renaixença," cementing the intellectual and discursive foundations upon which twentieth-century electoral politics would be launched. In seeking to explain this occurrence, one must not fall into the idealistic or positivistic trap of considering law either an immutable expression of spirit or an empirical derivative of evolved custom. Until the latter quarter of the century, there was no notion of a "Catalan civil law," no movement known as "Catalanism," and no clearly formulated concept of a "Catalan nation." Catalan law was regarded as merely one of the many "foral laws," exceptional to the "common law" of Spain. Throughout the century, university professors, practitioners, and members of the judiciary constructed an autonomous legal tradition while drafting guidebooks, discussing reform proposals, and digesting and interpreting European jurisprudence. Those who participated in these various projects did not always follow a stated plan or strive toward a clear objective; rather, they responded to their own practical and theoretical concerns in addition to political and juridical initiatives originating in Madrid. The goal here is to analyze this phenomenon, demystifying it from the organicist pretensions of the nationalists themselves. To do this, we must examine the reconstruction of what was clearly a decadent legal tradition in the early nineteenth century. 21

The Decadence of Catalan Law: A Foral Law within the Common Law of the Monarchy

Persons unfamiliar with Iberian legal history are likely to misconstrue the significance of the terms "common" and "foral," since their nineteenth-century meanings were far removed from their etymological origins.³⁴ In the middle ages, the word "fuero" (or "fur" in Catalan) meant the "just" or "legal norm" of a certain place, but following the reception of Roman law beginning in the late twelfth century, the term came to signify a local "exception" or "privilege" to the ius commune, the common law of Europe, or what was generally the feudalized Roman-canonical scholarly tradition.³⁵ During the eighteenth century, this distinction underwent a further transformation: "common law" meant the "common law of the monarchy" or the "nation" of Spain, while "foral law" was an umbrella category that encompassed all exceptional law within the realm. The foral law's specific provisions were frequently unclear. The common law's were more sharply defined, basically consisting of those rules contained within a series of royal compilations, of which the Siete Partidas (1263–1265) was the most well known. During the early modern period, scholars added the Partidas to other compilations and scattered laws producing various "recompilations," the last being Novísima Recompilación (1805). The common law also included other pieces of legislation promulgated since 1805, the date of the last recompilation. 22

     By the early nineteenth century, Catalans began to employ the adjective "foral" to describe the laws of the former principality, but nobody could state with certainty what this exactly entailed. A confusing body of choice-of-law jurisprudence, itself subject to debate and uneven application--differing from lawyer to lawyer, from case to case, and from judge to judge--governed whether a foral or common law rule was to be applied in a particular situation.³⁶ If presented with a choice, it was often much easier to employ a "common law" source, written in Castilian, the language of the courts, than it was to utilize a "foral" source, written in Latin or Catalan. In any case, the issue was frequently irrelevant to the outcome of a particular lawsuit. In 1800, Ramon Dou, the premier scholar of his day, recognized that Spanish compilations were often applicable within the former Principality. But he was unable to pinpoint precisely when, admitting that his own explanation necessarily suffered from a "lack of precision" due to the absence of clear statutory guidance.³⁷ As late as 1876, the author of an urban guide dryly commented, "Since Philip V, Catalonia is governed by the general laws of the Nation, except for some regarding inheritance that are peculiar to the Principality and its foral code."³⁸ Although this is clearly an erroneous, nontechnical statement, it was indicative of the confusing state of affairs.³⁹ In theory, Catalan law remained faithful to its own sources and its own choice-of-law jurisprudence, but, to many, it had been reduced to a series of "foral" exceptions to "common law" norms. 23

     The Roman law predilections of the Catalan legal community further obfuscated matters. Catalonia's choice-of-law rules prioritized Roman law as the primary supplement to Catalan statutes. Moreover, as explained below, juridical thinkers often asserted that Catalonia's foral law was more highly dependent on the Roman tradition, while Castile's common law embodied more Germanic influences. "Roman" and "Germanic" were, no doubt, politically loaded labels, discursive constructs rather than accurate historical descriptions. Nonetheless, there was some truth to the simple claim that the ius commune tradition was stronger, or at least harder to extricate, in Catalonia than elsewhere. Following the recovery of Justinian's Corpus iuris civilis (528–534) in the eleventh century, the Roman law entered into Iberia first and most forcefully through Catalonia; the Principality's geographical proximity to the universities and monastic communities of Italy and Southern France favored a swift and thorough reception.⁴⁰ By the early modern period, the ius commune had become standard pedagogical fare throughout Spain; yet in the eighteenth century, Catalan professors at the University of Cervera earned the well-deserved reputation of being the most staunch supporters of the traditional curriculum and the most stalwart opponents of Enlightenment reform.⁴¹ Even after the university moved from Cervera to Barcelona in the late 1830s and early 1840s, the professorate maintained these preferences, although they glossed Roman law to be more or less consonant with the general requisites of economic liberalism. It is revealing that the most authoritative nineteenth-century commentary on the Siete Partidas, a document representing the reception of the ius commune in Castile, was the work of Barcelona professors.⁴² This was quite ironic since the Partidas were arguably inapplicable in Catalonia.⁴³ 24

     During the first half of the nineteenth century, law in Catalonia was in disarray. The promulgation of a strong, consequential body of state legislation abrogating feudal jurisdictions and disentailing ecclesiastical holdings had the destructive potential of a tidal wave crashing down on Catalonia's traditional legal regime. It also created the impression that common law represented the forces of liberalism, while foral law consisted of scattered feudal remnants. Given the tumult of a countryside intermittently ravaged by civil war and undergoing a massive legal reordering because of the decline of the Old Regime, the future of Catalan law was an open question. In 1838, Ramón Martí, the leading commentator of the Partidas, suggested that Spanish law could be rationalized by mixing "Roman" legal principles with some modified French organizational strategies, a solution that would implicitly preserve some key Catalan institutions.⁴⁴ In 1843, another group of lawyers, including some collaborating in the edition of the Partidas, suggested that Catalan law could be added as a set of exceptions in an "appendix" to a Spanish civil code, a proposal most lawyers later considered repugnant when the Ministry of Justice reiterated it decades later.⁴⁵ However, nobody advocated that Catalan law could be formed into an integral and autonomous legal system by revitalizing a tradition that had not been thoroughly glossed in over a century. How Catalans gradually arrived at this "nationalistic" solution is the subject of the remainder of this article. 25

Defense of Family and Property: Resistance to the Reception of the French Civil Code

Among the various options, there was one that the legal elite did not publicly entertain: a wholesale adoption of the French Civil Code. Yet they were well aware that many of their counterparts in Madrid were planning to follow this route. Since 1818, reformers had succeeded in imposing a uniform law school curriculum, diluting the influence of ius commune and increasing the number of courses dedicated to natural law and penal, mercantile, and Spanish codes and compilations.⁴⁶ Part of their rationale was to facilitate the smooth integration of a modified version of the French Civil Code. Faithful to such preferences, in 1851 the government published a draft of a civil code, which was to remain on the table for continued debate and discussion for decades thereafter. Simply stated, the draft code threatened to erase all legal differences throughout Spain in exchange for uniform provisions. As expected, it emulated the French Code and many of its siblings then in existence, particularly those of Holland, Naples, Louisiana, and the Swiss canton of Vaud. Jurists affiliated with the Ministry of Justice in Madrid tended to be optimistic about the probabilities of its eventual promulgation, while Barcelona's initially skeptical legal community grew increasingly hostile to the prospect of its adoption.⁴⁷ 26

     At first it was not obvious that the draft code would face a cohesive opposition. Spain's politicians had long been partial to Napoleonic formulae, encountering little parliamentary resistance to the centralization of administration, justice, and pedagogy. Furthermore, uniformly applicable penal, commercial, and procedural codes, promulgated in 1822, 1829, and 1855 respectively, elicited few adverse responses. Like the university professorate, court reporters and other functionaries at the Barcelona Audiencia (the court of appeals for the four Catalan provinces) also recognized the advantages of utilizing French positivistic methods to refurbish a neglected corpus. From 1832 to 1835, Pere Vives published his four-volume Translation into Castilian of the Usatges and Other Laws of Catalonia, which consisted of a recompilation of all Catalan law still applicable within courts of the Audiencia jurisdiction. The previous version, published in 1704 in Catalan, a language void of authority in juridical and administrative forums since 1716, was hopelessly dated. Following Vives's work, Catalan foral provisions were as handy as those of the common law. More directly reflective of French style was Josep Elias and Esteve Ferrater's guidebook, Manual of Civil Law applicable in Catalonia (1842). They employed short, concise, graspable rules and divided their lucid "code" into similar, although not identical, three books as the Napoleonic Code. Necessary components of even the most Spartan lawyer's library, both the Manual and Translation were updated, edited, and reprinted later in the century.⁴⁸ 27

     Scholars may have harbored certain intellectual sympathies toward French style, but a more visceral reaction among mainstream practitioners was not surprising. French armies had crossed the Pyrenees into Catalonia twice in the first quarter of the nineteenth century, occupying Barcelona between 1808 and 1814, and again from 1823 to 1827. The Spanish War of Independence (1808–1813) was a gruesome and violent conflict, experienced by many of the profession's patriarchs along with the rest of society. Ramon Dou, for example, the anti-Bonapartist and pro-Bourbon rector of the University of Cervera, served as the inaugural president of Spain's first constitutional convention, called the Cortes de Cádiz (1810–1813), where he was a vociferous opponent of Napoleonic civil unity.⁴⁹ Another icon of the profession, the liberal Joan Ventosa, a mid-century dean of the bar, was rumored to have suffered more than two years in a French prison during his youth after being captured during the defense of Tarragona.⁵⁰ Antipathy toward French models continued throughout the century. Referring to those who fought in the battles of Girona, Saragossa, Bailen, and Talavera during the war, the federalist leader and highly successful criminal defense specialist Francesc Vallès remarked in 1881, "What would these patriots say if they could witness the actions of modern unifiers who want to import a foreign Code?"⁵¹ 28

     But collective memory only partially accounts for the French Code's lack of cachet. To understand the obstacles it faced, we must distinguish between substance and form. It was one thing to be influenced by attractive systems and style and quite another to admire the French Code's content and favor the social transformations its adoption entailed. Interpretation had its limits, and neither practitioners nor juridical commentators were free to invoke law that contravened established, written rules, even if many of these were found in texts that were centuries old. The few who peddled even tepid Napoleonic reforms made little headway in Barcelona's lawyerly milieu.⁵² Indeed, serious impediments blocked the spread of French law's influence to a greater extent in Catalonia, and in most of the other foral regions, than in the rest of Spain. Catalonia and Castile represented nearly antithetical poles of the two dominant family organizations present throughout Europe: Castilian law, like French, was centered around the "nuclear family," characterized by a "community property system" and featuring the prevalence of partible inheritances; Catalan law reflected practices of the "stem family," its legal provisions facilitating impartible inheritances.⁵³ Juridical thinkers throughout Spain and all of Europe lined up on different sides, debating which system was preferable. The framers of the draft code of 1851 opted for a mixture of Castilian and French laws, conceding no ground to the foral traditions. 29

     It would be a daunting task to enumerate every specific characteristic distinguishing "Castilian" and "Catalan" law, especially since each possessed its own customary variants within these general models, and each general institution bred a slew of specific rules. Central differences can be appreciated by focusing on three features. In most of Catalonia, husband and wife maintained individual ownership over property during marriage, a married woman was technically free to administer her own assets, and ample testamentary authority existed for both men and women. The draft code of 1851 contained different rules governing these key matters: husband and wife shared marital property (unless contracted otherwise and before the celebration of marriage); a married woman needed a husband's permission to contract; and testamentary authority was seriously restricted. Moreover, the draft code also abolished "emphyteusis," an Old Regime system of landholding, common within Catalonia and some of the other foral regions but rarely employed in central and southern Spain. Table 1 below helps make these distinctions clear. 30

Table 1.
Catalan, Draft Code, and French Legal Institutions

^aI have labeled the category "Catalan law," although some divergent municipal customs existed. For example, Tortosa and its surrounding towns used a family legal regime resembling the Castilian system. But most Catalans used that described here.
^bI have used "default" since both the Napoleonic Code and the draft code of 1851 allowed spouses to choose other systems, including a regime of separate assets, if the arrangement was contracted before marriage. Under Catalan law, alternative systems--such as community property--could also be agreed upon in a marriage contract. See Code Napoléon (1804), arts. 1387–98; Florencio García Goyena, Concordancias, motivos y comentarios del Código Civil Español (Madrid: Sociedad TipográFico, 1852), vol. 3, arts. 1235–44; and Durán y Bas, Memoria, 305.
^cUnder the Napoleonic Code and draft code, the "community" was slightly different. Under French law, it included both prenuptial immovable property and all postnuptial assets. Under Spanish common law, as under Catalan law, prenuptial assets, both movable and immovable, remained individually owned. I have not included "prenuptial" assets here, since they were not in dispute. For community property, see Code Napoléon (1804), arts.1399–1402; García Goyena, Concordancias, vol. 3, arts.1309–13.
^dElías and Ferrater, Derecho civil vigente en Cataluña, 2d ed. (1864), art. 11; and García Goyena, Concordancias, vol. 1, art. 63; Code Napoléon art. 217.
^eThese regimes of succession are not easily summarized since they differed with respect to ascendants, descendants, and collateral relatives, and varied depending on the number of children. Under the Napoleonic Code, between one-half and three-fourths of the deceased's estate was mandatorily divided by law among legitimate children, depending on the number of children. Traditional Spanish common law had a similar though not identical limitation, but it also incorporated a peculiar institution of Visigothic origins known as an "improvement" (mejora), which allowed parents to increase the share destined to a preferred child. The framers of the draft code diluted the effect of the mejora and made other changes. Testamentary liberty was significantly greater in Catalonia, since it allowed a person to dispose--toward children (legitimate or illegitimate), relatives, or outsiders--up to three-fourths of his or her estate. Code Napoléon, art. 913; Elías y Ferrater, Derecho civil vigente en Cataluña, 2d ed., art. 2160–75; García Goyena, Concordancias, vol. 2, arts. 642, 654.
^fCatalan law regulated emphyteusis, the Spanish draft code prohibited it, and the French Code implicitly prohibited it by not contemplating its existence. Elías y Ferrater, Derecho civil vigente en Cataluña, 2d ed., arts. 963–1083; and García Goyena, Concordancias, vol. 3, art. 1547.

     The threat posed by the potential importation of French or Castilian rules of law involved the different economic rights of husbands and wives. In Catalonia, a woman maintained her own assets during marriage and was technically free to administer these and their proceeds as she wished. As Josep Elias and Esteve Ferrater stated in their guidebook, "All rights and obligations under civil law applicable to men are also applicable to women."⁵⁴ It is doubtful if women made frequent independent use of their contractual rights, or whether these rights actually operated in favor of male relatives who could look after the stem family's interests in the case of untrustworthy or incompetent brothers-in-law. Whatever the case, the provision did generate controversy and harbored propaganda value. Speaking in 1870, Felix Falguera, university professor and perennial dean of the notarial bar, considered "the emancipation of the woman with respect to her financial interests"⁵⁵ an important element of Catalan law. Yet in 1879, the government imposed the requirement that a married Catalan woman also had to secure marital license.⁵⁶ This modus operandi was by no means novel nor was it always controversial: politicians routinely legislated and the Supreme Court applied much common law in Catalonia, abrogating antiquated foral law to the contrary. Nonetheless, many suspected that unwarranted and certainly unprovoked intrusions revealed the presence of a plan to achieve uniformity through piecemeal implementation. Upon learning that the civil code continued to apply the 1879 restriction in Catalonia, Falguera claimed that this measure was equivalent to "enslaving the woman."⁵⁷ 31

     When choosing their battles, Catalans more zealously defended a husband's economic privileges. Most believed that their law promoted broad economic freedoms, which they termed "civil liberties," but it would be grossly misleading to depict such individuals as early women's rights advocates. The opposite was closer to the case. To many, Catalan law preserved paternal authority in the household, since a husband normally owned, administered, and ultimately donated by testament the lion's share of a family's wealth. Not only was maintaining separate property essential to preserving this status, but broad "testamentary liberty" was also key. Florencio García, the draft code's author, despised this institution, equating it to "paternal despotism,"⁵⁸ but Catalan advocates almost unanimously thought otherwise. Joaquim Cadafalch, an urban practitioner and rural property owner, supplied the intellectual artillery: ample testamentary powers promoted children's obedience, while forced intestate succession undermined parental authority, weakened marriage, and fomented rebelliousness. To Cadafalch, the Castilian and French systems for dividing inheritances were no less than socialist, communist, and dictatorial, indicative of the beliefs of Robespierre, Babeuf, Marat, Saint-Simon, Proudhon, and Napoleon among others.⁵⁹ 32

     Cadafalch also incorporated the concept of economic utility, chiefly relying on the work of Frédéric Le Play. Testamentary liberty allowed for long-term planning and stability between generations, so went the argument, while the forced division of assets disrupted continuity and divided productive tracts of land into smaller unworkable parcels, vulnerable to adverse climatic conditions and short-term changes in the market for credit. This logic was not only valid in the agrarian world, but it also applied to artisinal enterprises and larger manufacturing concerns. Le Play had contrasted England's broad testamentary liberty to France's system of dividing inheritances in order to account for the former's economic success and the latter's comparative lethargy. Cadafalch, in turn, creatively replaced Le Play's "English-French" dichotomy with that of Catalonia and Castile, formulating a highly influential and often-repeated generalization accounting for different rates of Iberian economic development.⁶⁰ In the Congress of Spanish Jurisprudents of 1863, elite lawyers and academics gathered in Madrid to discuss the viability of the 1851 draft code. At this meeting, the issue of testamentary liberty was the chief point of contention. Barcelona delegates claimed it had created an ambiance favorable for industrial take-off and economic growth. They attributed the stagnancy of central Spain to the prevalence of partible inheritances.⁶¹ 33

     Jurists also employed similar economic reasoning in order to justify the continuity of "emphyteusis," a seignorial system of landholding that allowed ownership to be divided, and subdivided, between "direct owners" and "beneficial owners." The perpetuity, inheritability, and transfer of these arrangements was also permitted. Unlike many jurists throughout Europe, Catalans did not portray divided ownership as a vestige of feudalism but considered it favorable to generating economic wealth. In 1829, Dou noted, "Where emphyteusis governs . . . one sees delicious farms, abundant populations, variegated living styles . . . beautiful crops . . . this is not seen in other provinces."⁶² Later, Falguera somewhat disingenuously contended that it was a liberal system, since it allowed two parties to freely contract flexible arrangements, encouraging long-term planning adjusted to the specifics of production and the peculiarities of the terrain. Moreover, he noted, by departing from all-or-nothing approaches to ownership, it fostered social mobility. To Falguera, hard working and enterprising peasants could enrich themselves by acquiring small incidences of ownership, gradually acquiring more, and subdividing the ones they had.⁶³ These arguments, reeking of a thinly veiled defense of gentry, did not go unchallenged. How and in whose benefit emphyteusis was to be reformed remained an intense point of controversy, and a source of rural violence, until Franco's victory in the Spanish Civil War (1936–1939) meant that rentier interests triumphed once and for all.⁶⁴ 34

     It should be noted that Catalan law consisted of more than a detached application of legal rules. Scholars and practitioners labored within a forest of customary institutions. The most notable included: the "hereu," the quintessential successor (almost invariably firstborn) to an agrarian estate; the "pubilla," the eldest female who inherited the estate when no male heir was alive or deemed worthy; and the "fadristerns" or "fadrins externs," younger brothers, who, deprived of a significant inheritance, were forced to seek their fortunes in either commerce, the professions, or the church. Other institutions regulated dowry, widowhood, and diverse farming and sharecropping relationships.⁶⁵ Such picturesque and idealized arrangements and figures bridged the disciplinary divide between law and literary Romanticism. A parade of industrious patriarchs, gentle and affectionate mothers, venerated widows, obedient and fraternal children, and entrepreneurial and independently successful younger brothers protagonized poetry, vignettes, and proverbs. These were widespread images during the formative years of nascent Catalan nationalism, still present though somewhat folkloric and anecdotal today.⁶⁶ In contrast, writers such as Cadafalch depicted the Castilian family as lazy and unruly: children lacked incentive and motivation, since most of their inheritance was guarantied; a father's authority was undermined, forced to share half of his earnings with his wife and possessing limited testamentary abilities. Although the legal trimmings have since disappeared, these stereotypes still remain. 35

Legal Historiography: English Constitutionalism and the Germanic-Roman Debate

Having witnessed the violence of multiple civil wars and revolutions, many middle-class Catalans were admirers of what they perceived to be Great Britain's peaceful road to moral improvement and material enrichment. Swayed by French Anglophiles, from Montesquieu to Tocqueville to Le Play, political thinkers were also intrigued by British constitutionalism, which they believed possessed certain commonalities with the Catalan past. The English Parliament and the Catalan Corts (the three estates in parliament) had both instigated famous seventeenth-century "constitutionalist" revolts, and nineteenth-century lawyers in both places championed broad testamentary and contractual liberties.⁶⁷ Nonetheless, extending parallels much further required the use of tortured logic since there were critical incompatibilities of sources and origins. As explained in J. G. A. Pocock's seminal study, English legal historiography was founded upon the belief (or myth) that English common law constituted a living "ancient constitution," rooted in Anglo-Saxon time-immemorial customs, exemplary of liberty;⁶⁸ Roman law was correspondingly labeled as a rigid system, associated with other signs of continental inferiority, such as absolutism and Catholicism.⁶⁹ The value judgments inherent in this Roman-Germanic antinomy ran contrary to the aesthetics of Catalan scholars, most of whom claimed that their ancestors had long ago obliterated any Germanic remnants. Nonetheless, they succeeded in reconciling constitutionalism with Roman law, employing some rather creative hermeneutics in the process. 36

     The uncritical invocation of a Roman legal heritage was riddled with inaccuracies, some of which were perceived and glazed over, while others were unknown at the time. Nonetheless, this simple and erroneous generalization constituted the bedrock of juridical scholarship. Accounting for national origins through the use and manipulation of legal history was particularly functional, since Catalans, unlike Basques, could not contend that they descended from a different people or race than other Spaniards. In other words, Catalans possessed no equivalent to an "Anglo-Saxon" or "Basque" nation and they conceded that, like Castilians, they descended from Celto-Iberians who populated the Peninsula before the arrival of classical civilization.⁷⁰ Hence, the Roman-Germanic dichotomy receded as far back in time as they could conceivably retreat in attempting to account for essential differences. In 1883, Manuel Duran repeated the often-heard contention that "in Castile, the basis of its legislation is more Germanic" and noted that in Catalonia and most other foral regions it was "more Romanic."⁷¹ This assertion was grounded in the fact that some emblematic "Castilian" institutions, such as community property and partible inheritances, derived their authority from the Visigothic Liber iudiciorum (654). Moreover, prohibitions on a woman's ability to contract were also characteristic of other Germanic laws. Alternatively, "Catalan" institutions such as broad testamentary powers, individual property, and a married woman's ability to administer her own assets were derived from Justinian's Corpus iuris civiles.⁷² 37

     In retrospect, it is evident that this neat dichotomy was patently false and thoroughly misleading. What Catalans and Europeans colloquially referred to as "Roman law" did not necessarily mean the law of Rome or even late antiquity but, rather, referred to medieval glosses of the Corpus iuris. For example, Manuel Duran claimed that emphyteusis was descendant from the Romans,⁷³ when, in reality, its origins are now known, and were even then suspected, to be feudal.⁷⁴ A similar reasoning could also be used to discredit the so-called Romanic origins of testamentary liberty.⁷⁵ To be sure, many institutions that Catalans and others claimed to be "Roman"--such as emphyteusis and elective primogeniture--were manifest within other legal systems also inappropriately labeled as "Germanic." The reality was that the presence of specific institutions of Catalan law had little to do with either Roman or Visigothic presence on Iberian soil and much more to do with later occurrences: the Frankish conquest of the northern parts of the territory from the Moors, beginning in the eighth century; the subsequent conquests of the counts and the repatriation of conquered territories; and, most important, the gradual evolution of Catalan feudal society thereafter. In this respect, the Catalan project followed a recognizably English script. While the latter sought to minimize the Norman invasion, the former did the same with respect to the Frankish colonization. Both downplayed "French" influences, and both reformed the feudal law to be congruent with the general mandates of liberalism while appealing to mythical ancient liberties of the past. 38

     The Gothic heritage also had its champions, although what could be cautiously labeled as "Gothicism" consisted of little more than passing references rather than systematic scholarly treatment. In 1809, Antoni de Capmany, the most recent commentator of the Consulat de Mar, First implanted the historical myth that the medieval Catalan Corts possessed "Gothic" origins.⁷⁶ Writing on the eve of Spain's first constitutional convention during the War of Independence, he propagated this idea in order to disassociate Spain's constitutional project from French prototypes and couple it with the English tradition. Campany's Anglophilic and Francophobic sentiments were understandable given that British armies were then directing military campaigns against Napoleonic troops on the Peninsula, but his conceptualization transcended this immediate context. By mid-century, the liberal politician and historian Victor Balaguer was popularizing the notion that the essence of Catalan political thought was "constitutional liberty," a concept descendent from the so-called ancient liberties of the Goths.⁷⁷ Both Capmany and Balaguer believed Gothic constitutionalism was an appropriate historical reference on which to found Spanish liberalism, but by the late nineteenth century, their ideas would stimulate more radical doctrines. 39

     Such constitutionalist Germanophilia served as a starting point for Josep Pella and Josep Coroleu, prolific historians, practicing lawyers, and members of the protonationalist group, "Young Catalonia," founded in 1870. Pella's opinions were so pronounced that he maintained that the word "Catalonia" descended from what was originally "Gothlandia,"⁷⁸ hence discarding an alternative, and more plausible, explanation that traced the etymological origins of Catalonia and Castile to the same root.⁷⁹ With respect to judicial scholarship, he and Coroleu were principally occupied with uncovering and compiling the lost public law of the Catalan Corts, abolished in 1716 when Spain's first Bourbon king, Philip V, imposed absolutism in Catalonia. In an attempt to undermine the centralist underpinnings of the Bourbon conquest, these authors assembled a plethora of old Catalan constitucions (the laws of the Corts) out of which they hoped to forge a modern Catalan "Constitution."⁸⁰ Emulating reasoning developed in opposition to the draft code, they considered Spanish constitutional theory too slavish to French precedent and not reliant enough on more historically sensitive models, such as those of England and Austria-Hungary. With time, their arguments blossomed into two different species of right-wing and left-wing Catalanism. Pella's opinions typified the Catholic view supporting the doctrine of "regionalism" and the contents of the Manresa Principles: the old Catalan Corts could be resuscitated, the medieval estates transformed into a corporative voting franchise. To Coroleu, the Corts should be used to inspire a democratic and federal organization of the Spanish state.⁸¹ 40

     References to the Germanic past were more common within studies of the public law, but there was one serious attempt to promote a similar version of history of the private law. Its failure to capture a sympathetic readership was revealing. In 1867, Bienvenido Oliver, a Valencian who served as a magistrate in Barcelona, published his Historical Studies of Civil Law in Catalonia.⁸² The first history based on extensive archival research, it might have been expected that this contribution would be a comprehensive study supporting prevailing opinion, but it did just the opposite: it attempted to debunk a narrative that had been generally accepted but not fully expounded. Oliver angered much of the establishment by contending that Catalonia had once possessed the most sophisticated Germanic law on the Peninsula. Further enraging his adversaries, he claimed that Catalonia's deep collection of municipal customs, such as the Customs de Tortosa (1279), if properly rehabilitated and interpreted, could serve as the foundation of a Spanish Code.⁸³ Oliver's adulation of a Germanic past and his demonizing of Roman influences did not necessarily reflect English jurisprudence; his approach was closer to a related continental strain, beginning with the Huguenot François Hotman and continuing with Montesquieu and some of the French Civil Code's framers.⁸⁴ To many Catalans, it represented an impermissible and politically motivated distortion, indicative of the centralist tendencies of the Spanish bench. 41

     The initial response of the Catalan legal elite was to stem the prejudicial influence of Oliver's history. Thus, Falguera began a lecture series at the Barcelona Atheneum in 1870, deriding Oliver in the opening session for being non-Catalan, unversed in the law, and harboring "anti-Romanist and anti-foralist" prejudices.⁸⁵ In 1881, the financier-lawyer Felip Bertran outlined a more generally accepted version for public consumption. He wrote a series of didactic articles in the daily newspaper, Diario de Barcelona, in order to explain to a lay audience why lawyers were so uneasy about the destructive potential of a code. His strategy was to juxtapose Castilian and Catalan law, tracing their differences to historical origins. Bertran explained that Spanish common law was primarily influenced by Gothic law, derived from Euric's Code--a warrior law of the Cid and the Reconquest. To Bertran, Roman law played only an accompanying and secondary role, hence leaving much of Spain to be governed by a confusing hybrid. With respect to Catalonia, Bertran conceded the existence of a Visigothic past, but he noted that an intensive Roman law reception had returned its legal regime to its historic roots and diluted Germanic influences to the point that traces were barely perceptible.⁸⁶ 42

     Francesc Romaní endowed the "Roman law thesis" with more ideological venom in his book, The Antiquity of Spanish Regionalism (1891). To Romaní, the Gothic law reeked of the many ills of Castile: a warlike mentality; oligarchical government; and political uniformity. (After all, Iberia was at one time united under the Visigoths before "Catalonia" even had a name.) In contrast, Roman law enjoyed the reputation of being the guiding light of a sophisticated, Mediterranean people--the Catalans--faithful to Catholicism and paternal authority in their private lives, and enterprising, constitutionalist, liberty loving, and just in their public and commercial relations.⁸⁷ It is not much of an interpretative stretch to recognize that this narrative functioned as a Roman Catholic equivalent of a "Protestant ethic." Ultimately, whether one chose to find the origins of "liberty" in Gothic or Roman law was a matter of taste, a product of invention rather than history. As such, this metahistory of the private law adopted English constitutionalism while turning it upside down, endowing Roman law with the same virtues of progress that the English had associated with Anglo-Saxon customs and denigrating Germanic law with many of the same accusations that the English had directed against Roman law. 43

Jurisprudence: The German Historical School

Scholars generally perceived British political economy to be superior to French alternatives, but not a single Catalan lawyer seriously contemplated borrowing English common law. In England, the doctrine of stare decisis sanctified the authority of legal precedent or judge-made case law, running contrary to the continental dependency on statute. English customs perhaps justified Catalan customs, but, by the nineteenth century, customs were idiosyncratic and not easily interchangeable. Moreover, much of English juridical thought crystalized within the context of absolutist-constitutionalist and Protestant-Catholic conflicts, thereafter remaining relatively insulated from subsequent continental scholarship. In short, it was much easier to implant steam power in Barcelona than English jurisprudence. Instead, Catalan scholars were attracted to more modern legal theory, much of which emanated from German universities. Many Madrid democrats were devotees of the natural law philosophy of the freemason Karl Krause and his disciple Henri Ahrens.⁸⁸ Barcelona's more conservative juridical community preferred Friedrich von Savigny's "historical-school jurisprudence," an eclectic mixture of German historicism and a neo-classical reverence for Roman law. 44

     The historical school came to be a decisive intellectual influence on the genesis of Catalan nationalist ideology. According to Donald Kelley, who has examined its reception in Restoration France, Savigny and his colleagues were responsible for popularizing the Herderian "Volksgeist" within legal circles outside Germany, clearing a path for the arrival of general historicist ideas among a broader sector of the populace thereafter.⁸⁹ In Catalonia, there was a similar though belated process. Barcelona's mid-century philosophy scholars showed little interest in German historicism, instead preferring neo-Kantian conservative doctrines, most notably the Scottish School of Common Sense.⁹⁰ But as controversies concerning civil law moved to the forefront of juridical and indeed political concerns, preferences changed. Law professors imported Savigny, opening the floodgates for what was to become an inundation of historicist influences across multiple academic disciplines. By century's end, ideologists had mixed Scottish "common sense" with the German "Volksgeist" to give new meaning to a homemade expression known as "seny": Catalonia's own "spirit of common sense."⁹¹ Even today, many Catalans refer to their seny to describe their compromising and patient attitudes toward achieving political goals, hence distinguishing Catalonia, like Scotland, from sectors within Basque or Irish nationalism that have opted for more confrontational and even violent tactics. 45

     By invoking Savigny, the single most influential private law jurist in all of Europe, Catalan lawyers consciously and pretentiously strove to cloak their own project in prestige. Among his academic contemporaries at the University of Berlin, Savigny's fame was second only to that of his rival Hegel. The intellectual mandarin of a successful, valiant, and against-the-grain movement to rehabilitate and legitimize Roman law during an age generally associated with the rise of liberalism and romanticism, Savigny's work conditioned much jurisprudential debate inside and outside Germany. To his detractors, he was a reactionary defender of aristocratic privilege who, among his various politico-juridical endeavors, sought to use the Roman law of prescription to prolong serfdom in Germany.⁹² To his supporters, he was a conservative and brilliant jurist who believed Germany's future lay in reconstructing the peaceful bonds of the Holy Roman Empire and not in emulating a bellicose Bonapartist or Jacobinist centralized state that threatened to reconstruct society through legislative fiat and conquest.⁹³ Catalans understood very little of him; not a single jurist claimed to read German, and none studied in Germany. They cited Savigny because of the aura his name generated and because "Savigny" was synonymous with the virtues of Roman law and the opposition to codification.⁹⁴ 46

     Catalans were not the only ones who borrowed Savigny without realizing the wider implications of his intellectual enterprise or grasping the subtleties of his thought. For example, New York attorneys also borrowed his broad historicist assertions to combat codification in the 1880s, and he was probably cited in many similar debates still unexplored.⁹⁵ Yet historical-school jurisprudence was arguably a closer fit in Catalonia than in most other places. It captured the attention of scholars for two reasons. First, it provided an intellectual justification for maintaining the means by which law was actually practiced. It reflected what James Whitman has labeled a "pre-absolutist" legal order, in which professorial lawmaking was common and Roman law dominant.⁹⁶ Throughout the nineteenth century (and well into the twentieth), Catalonia's foral regime remained technically dependent upon a pre-absolutist hierarchy of sources. In the absence of an applicable common law rule promulgated since the New Order (1716), judges were first to apply the Usatges and other constitucions, and if these did not address an issue at hand, they were to look to Roman-canonical texts, and then to the doctrines and glosses of European and Catalan jurists.⁹⁷ The maintenance of this choice-of-law jurisprudential regime not only meant that the ius commune tradition remained at least formally vital, but it also reserved a large space for scholars to continue to interpret laws to conform to historical circumstances. 47

     Second, the historical school served a political function in Catalonia analogous to that in Germany, for Savigny had initially articulated this philosophy in order to fend off a proposal for a unified civil code. To Savigny, codification was artificial and pathological, representing an unscientific legislative interference that truncated natural development and critically damaged the volk's legal and social health. Writing in the wake of the expulsion of Napoleonic armies from German soil, he warned legislators to ignore calls for legal unity, to stay out of the realm of private law, and to dedicate themselves to more pressing public concerns. In so doing, he protected the autonomous sphere of academics and practitioners to whom he assigned the task of nurturing legal progress by applying Roman legal precepts to local custom and habit. More than a half century later, many Catalan lawyers similarly perceived themselves as curators of their native law amid threats of unification originating in Madrid. They imported the basic outlines of Savigny's doctrine, stripping it of its genius and nuance, and cutting it up and reassembling it to fit their needs. 48

     Manuel Duran was the chief baton waver in this parade of juridical adulation. In 1869, he founded a Barcelona branch of the Berlin-based "Savigny Foundation," although it was not until 1878 that he introduced the rudimentary outlines of the historical school to Spanish readers in his introduction to the translation of Savigny's Contemporary System of Roman Law.⁹⁸ Later, he reworked much of his interpretation in his Institutions of Civil Law in Catalonia (1883). In applying the historical school to Catalan circumstances, Duran confronted significant hurdles, given that Savigny had propounded his theory in a very specific context, exclusively addressing an audience reeling from the debilitation and humiliation of war and occupation. In 1814, Savigny had argued that Germans, because of their multiple, not to mention political, divisions, should not attempt to unify their law. After all, he observed, the Romans had waited until the late epoch of Justinian (sixth century) before compiling the grand Corpus iuris, hence Germany should not attempt to codify until its laws and customs had also evolved naturally and cohesively together.⁹⁹ Using this conceptual framework, Duran implied that Spain found itself roughly in the same condition as Germany in 1814: a decadent country fractured into multiple legal traditions and jurisprudential tendencies. To Duran, codification would be untimely: statesmen should allow the diverse laws of the common and foral law regions to evolve in harmony rather than imposing a uniform code.¹⁰⁰ 49

     In the long run in Germany and in the short run in Spain, neither Savigny's nor Duran's intransigence was sustainable. In Germany, representatives of both the rival "Romanist" and "Germanist" offspring of the historical school, faced with separate codification initiatives in individual states, came to accept the principle of legal unity around mid-century.¹⁰¹ In Catalonia, Duran abandoned theoretical orthodoxy when acting in the political arena. As a deputy in congress, he begrudgingly recognized codification's inevitability, but, consonant with the opinions of his colleagues and backed by Barcelona's Academy of Jurisprudence, he insisted that Catalonia be guaranteed the procedural mechanisms to ensure the future elaboration of its own volume of civil laws.¹⁰² These efforts were generally successful: until the publication of the Compilation in 1960, Catalan laws continued to derive their authority according to the region's pre-absolutist hierarchy of sources. Treatises, guidebooks, textbooks, Supreme Court decisions, and other scholarly publications guided everyday practice. 50

     German scholarship also influenced the systemizing of positive legal rules. In 1880, Guillem Brocà and Joan Amell published a new guidebook that fundamentally changed the way Catalans envisioned their law. The first edition of their Institutions of Catalan Civil Law mirrored the organization of what was to become the Spanish Civil Code, but the second edition, published in 1886, utilized the schema later incorporated into the German BGB.¹⁰³ This reorganization, however, was more cosmetic than real, consisting of the addition of a few headings and the shifting around of some titles. Scope and content were more significant. Brocà and Amell's contribution differed in important respects from its most proximate rival, Elias and Ferrater's Manual of Civil Law applicable in Catalonia. While the Manual included both "common" and "foral" law that had validity in Catalan courts, the Institutions addressed "Catalan civil law." Not as cohesive, synthetic, or taut as their predecessors' work, it employed a dated style and proved to be somewhat clumsy, especially when it sidestepped or tripped across applicable common law provisions. Nonetheless, it was a thorough, useful, and detailed edition that included a lengthy and impressive historical introduction, which, in the twentieth century, Brocà would convert into the heart of his intellectual project. His History of Catalan Law¹⁰⁴ (1918) still remains the paradigmatic work of modern Catalan legal history. Although Brocà shied away from the political limelight, the overriding implication of his enterprise was that Catalan law formed a coherent, independent, and detailed whole. 51

     Discourse followed theory. Faithful to the title of the new guidebook, the term "Catalan civil law" replaced references to "foral law" during ensuing decades. Enric Prat de la Riba carefully attended to this matter while standardizing much of the vocabulary of nationalism. He equated the difference between "common" and "foral" with that of "language" and "dialect": Catalan was neither a "dialect" of Castilian, nor was Catalan law a "foral" exception to the Spanish norm. Instead, Catalonia possessed a "civil law," equivalent to an independent, autonomous, and modern legal system. ¹⁰⁵ These de finitions were essential to his differentiation between "nation" and "state." As he wrote in the Catalan Juridical Review during its second year of publication in 1896:

52

They say it is poorly conceived to maintain different regimes of civil law within a nation, and they are more than correct. For this reason . . . we have convinced ourselves that Spain is not a nation but a state in which various nationalities live, or better said, die or agonize.¹⁰⁶

Conclusion: The Catalan Case in Comparative Perspective

The history of Catalonia's nineteenth-century legal renaissance is not characterized by the proliferation of internationally known scholarship. Dou, Capmany, Martí, Vives, Brocà, and their closest colleagues authored meritorious and intelligent works that have withstood the test of time, but the majority of those involved in what Manuel Duran christened the "Catalan Juridical School"¹⁰⁷ comprised a heterogeneous group of seasoned litigators, powerful businessmen and politicians, diligent compilers and historians, eloquent and charismatic orators, scholars of notable erudition, Romantic intellectuals, and even some outright hacks. Some made grandiose claims, others were more humble, yet none were as innovative as their European contemporaries or Catalan predecessors whom they so frequently cited and admired. Instead, they were followers and borrowers who enlisted foreign ideas and methods to suit their jurisprudential, and sometimes ideological, agendas and to rebuild Catalonia's tattered legal tradition. Even in this less assuming role, their scope was quite restricted: they read neither English nor German, relying instead on French translation. Compared to sixteenth and seventeenth-century Catalan jurists, such as Lluís Peguera, Jaume Càncer, Joan Pere Fontanella, and Joan Pau Xammar, who wrote in Latin and printed their treatises and commentaries in places such as Antwerp, Frankfurt, Geneva, Lyon, Nantes, Nice, Paris, and Venice, these nineteenth-century successors received no echo or recognition north of the Pyrenees.¹⁰⁸ 53

     Lack of intellectual originality, intrinsic sophistication, or international influence has been the chief reason that comparative legal historiography has ignored nineteenth-century Iberia. The dominance of this traditional litmus test hinders a more textured understanding of the history of legal ideas. If one is to examine the making of the civil law by taking into account political culture, then the case of Catalonia becomes more informative. As Michael John has noted, European lawmakers confronted a similar gamut of issues: the organization of the family economy; the division of inheritances; the limits of contractual and testamentary liberties; and the reform of feudal or semi-feudal jurisdictions, tenancies, and serfdoms. However analogous problems were often resolved using very different structures, forms, and rules.¹⁰⁹ In addressing such difficult issues, not all commissions of codification were equally adroit and not a single commentator was immune to his environment. It may be possible that much of the history of codification (and legal history in general) can be attributed to more vulgar, politically oriented, and indeed culturally specific ideas than has been heretofore acknowledged. 54

     The political context in which legal debates were embedded in Catalonia was certainly not unique, but comparative law's traditional core of case studies has thus far prevented us from gauging its precise degree of exemplariness or exceptionalness. Surely, something very similar must have been afoot in Hungary, which initially attempted to codify on the French model following the Revolution of 1848 but ended up adopting the Austrian ABGB in 1852, only to shed it less than a decade later as a prelude to achieving autonomy in 1867. Thereafter, juridical reformers opted to use Hungarian customs, mixing them with German Pandectism and some Austrian law. The Hungarian case is even more interesting since the composition of its legal profession featured a broad spectrum of practitioners from diverse linguistic, ethnic, and confessional backgrounds.¹¹⁰ Further study of Hungary, not to mention much of Eastern Europe and the Balkans, could reveal explicit connections between law and nationalism that parallel the Catalan case. 55

     The Scottish case also proves revealing, not only because of similarities but also because of differences. Scotland housed a much more autonomous and highly differentiated legal regime from the rest of Great Britain than did Catalonia from central Spain, yet Scottish advocates chose not to mix law with politics, at least not in the nineteenth century. Although it is always difficult to account for why an event did not occur as opposed to why one did, Colin Kidd has offered the most convincing explanation, arguing that Scots law was "unusable" because of the strength of the Whig historiographical tradition within the Scottish enlightenment. According to Kidd, Scottish intelligentsia equated English common law with "progress" and "economic change" and associated their law with outdated feudal tenures and heritable jurisdictions, indicative of "legal backwardness" and "economic retardation."¹¹¹ While Catalonia may have shared many historical similarities with Scotland, the economic situations of these two formerly independent regions, when juxtaposed with their respective central polities, was almost the opposite. As we have seen, Catalans connected their law with progress and that of Castile with decadence. The impossibility of dressing Castile in a costume of prosperity and scientific advancement--in an era that put a premium on these concepts--meant that the persuasiveness of a centralized Whig historiographical narrative in Spain faced structural limitations from the outset.¹¹² 56

     There is another explanation to account for different outcomes in Scotland and Catalonia. British politicians never launched a frontal assault against the autonomy of Scots law, while Spanish statesmen first proposed to abolish Catalan law in 1851, and later threatened to overhaul it in the 1880s, unintentionally waking up a sleeping giant in the process. British legislative unobtrusiveness or tolerance may have been because both Tories and Liberals, fearful of creating another Ireland, tacitly adhered to the concept of "semi-independence" inherent in the union agreement. By the end of the nineteenth century, Scotland maintained its own law, its own church, and inaugurated its own football league, but it only mustered a quiet nationalist organization.¹¹³ Either benevolence or foresight may have influenced respect toward Scots. Professional motives, however, were also at play. Since Coke's day, many foresaw that the imposition of English common law in Scotland could potentially produce a boomerang effect, causing an infiltration of Roman law in England and Wales.¹¹⁴ Whatever the case, Scots law--like English common law--represented treacherous territory that even the most crusading of reformers feared entering. Certainly within Catalonia, Hungary, Scotland, and indeed all of Europe, choices with respect to civil law could at times be sensitive, even explosive. 57

     From a comparative perspective, the case of Catalonia in Spain proves quite revealing. At first glance, Spain appeared to be an anomaly because its code broke the tradition of uniformity. However, what occurred could also be seen as a microcosm of that which transpired throughout much of Europe. Two modern legal traditions--one "Castilian" and another "Catalan," one based in Madrid and the other in Barcelona--developed in opposition, in much the same fashion as the French and English traditions, or the French and German, did. Moreover, paralleling the experiences of those countries in which lawmakers chose to undertake a foreign reception, Barcelona's jurists contemplated affinities and distinguishing characteristics when discussing which legal institutions were worthy of emulation and which ones would be pernicious if implanted. They elucidated some of the central assumptions belying Catalan identity by emphasizing essential differences with the rest of Spain, while also comparing and contrasting their society to Great Britain, France, and Germany. Nationalism in Catalonia, as elsewhere, was not only dialectical, it was multireferential. 58

     Examining the Catalan case is important for it reveals the malleability, if not the subjectivity, of civil law. The con fluence of several factors created a particularly vivid illustration: the decline of Catalan juridical tradition in the eighteenth century paradoxically set the stage for an impressive nineteenth-century reconstruction; the cultivation of distinct jurisprudential schools of thought in Madrid and Barcelona meant that antagonistic theories concerning private law competed within common public legislative, educational, and judicial forums; and the development of legal studies in tandem with cultural, historiographical, and literary revival further tightened the interlacing of law and identity. Yet this occurrence was re flective, although perhaps somewhat hyperbolic, of similar phenomena present throughout Europe, beginning with constitutionalist-absolutist con flicts, continuing in the aftermath of the Napoleonic wars, and culminating with the forging of the modern nation state during the age of romantic nationalism, economic liberalism, and legal positivism. The civil law was made, invented, and imagined to correspond to the exigencies of jurists working within and indeed constructing national legal traditions.

59

Stephen Jacobson is a lecturer in European Studies at King's College, University of London. He is grateful to Jim Amelang, Josep Maria Fradera, Albert Garcia Balañà, Tomàs de Montagut, Pau Salvador, and the referees from the Law and History Review for their critical comments and insights. One stylistic choice is worth mentioning: names of Catalan individuals are written in Catalan language in the text, but citations appear as they did in the original documents. All translations are by the author unless otherwise noted.

Notes

¹ See Michael John, Politics and the Law in Late Nineteenth-Century Germany: The Origins of the Civil Code (Oxford: Clarendon Press, 1989); and James Q. Whitman, The Legacy of Roman Law in the German Romantic Era: Historical Vision and Legal Change (Princeton: Princeton University Press, 1990). For a similar approach with respect to judicial power and civil procedure, see Kenneth F. Ledford, From General Estate to Special Interest: German Lawyers, 1878–1933 (New York: Cambridge University Press, 1996), 59–85.
² Joseph Pella y Forgas, Llibertats y [sic] antich [sic] govern de Catalunya (Barcelona: Puig, 1905), 61.
³ Historical overviews of European law routinely recognize the importance of the Usatges and the Consolat del Mar. See Harold J. Berman, Law and Revolution: The Formation of the Western Legal Tradition (Cambridge, Mass.: Harvard University Press, 1983), 310, 340–41; and O. F. Robinson, T. D. Fergus, and W. M. Gordon, An Introduction to European Legal History (Abingdon, Oxon.: Professional Books, 1985), 156–61, 201. English translations exist: The Usatges of Barcelona: The Fundamental Law of Catalonia, trans. and ed. Donald J. Kagay (Philadelphia: University of Pennsylvania Press, 1994); and Consulate of the Sea, and Related Documents, trans. and comp. Stanley S. Jados (Birmingham: University of Alabama Press, 1975).
⁴ The standard history of Catalan law is still Guillermo María de Brocá, Historia del derecho de Cataluña especialmente del civil, y exposición de las instituciones del derecho civil del mismo territorio en relación con el Código Civil de España y la jurisprudencia (Barcelona: Gili, 1918; reprint, Barcelona: Generalitat de Catalunya, Departament de Justícia, 1985). For a brief overview, see Santiago Sobrequés i Vidal, Història de la producció del dret català Fins al decret de Nova Planta (Girona: Col·legi Universitati de Girona, 1978). For the early modern profession, see James S. Amelang, "Barristers and Judges in Early Modern Barcelona: The Rise of a Legal Elite," American Historical Review 89.5 (December 1984): 1264–84.
⁵ The most widely used textbook reflects this approach. See Konrad Zweigert and Hein Kötz, An Introduction to Comparative Law, trans. Tony Weir, 3d ed. (Oxford: Clarendon Press, 1998).
⁶ The European Parliament officially put forth this possibility in 1989. See Official Journal of the Euro

FORUM: CATALAN NATIONALISM AND CIVIL CODIFICATION IN NINETEENTH-CENTURY EUROPE

Law and Nationalism in Nineteenth-Century Europe: The Case of Catalonia in Comparative Perspective

STEPHEN JACOBSON

Nationalism and Civil Law Codification in Europe, Spain, and Catalonia

The Defense of Civil Law and the Genesis of Catalan Nationalism

The Decadence of Catalan Law: A Foral Law within the Common Law of the Monarchy

Defense of Family and Property: Resistance to the Reception of the French Civil Code

Table 1. Catalan, Draft Code, and French Legal Institutions

Legal Historiography: English Constitutionalism and the Germanic-Roman Debate

Jurisprudence: The German Historical School

Conclusion: The Catalan Case in Comparative Perspective

Notes

FORUM:
CATALAN NATIONALISM AND CIVIL CODIFICATION IN NINETEENTH-CENTURY EUROPE

Table 1.
Catalan, Draft Code, and French Legal Institutions