Catalan Lawyers, Liberalism, and Codification

STEPHEN JACOBSON

There are good people who actually go into ecstasies over the Civil Code, a piece of work manufactured, whatever you may say, in a mean, tyrannical spirit; for the legislator, instead of doing his job, which was to regularize tradition, had the presumption to mould society as he thought fit, like another Lycurgus. Why does the law interfere with a father's rights when it comes to making a will? Why does it hinder the compulsory sale of buildings? Why does it punish vagrancy as a crime, when it shouldn't even be a misdemeanour? And there are plenty of other examples. I know them all. So I'm going to write a little novel entitled A History of the Idea of Justice, which will be terribly funny. But I'm absolutely parched. What about you?

Flaubert, Sentimental Education

Kenneth Ledford's thoughtful and poignant commentary has highlighted a number of intriguing theoretical issues that will be debated as the study of modern Catalonia continues to make inroads into various disciplines within the Anglo-Saxon academy.1 Acknowledging Ledford's observations, I limit my response to clarifying three points: (1) the degree to which the Barcelona legal profession was unified; (2) lawyers and liberalism; and (3) the challenge that Catalan "exceptionalism" poses to Weberian modernization. In order to address these issues, I expand the scope of this response beyond that of the original article.2	1
With respect to the question of "unity," Barcelona's lawyers and notaries often attended the sessions of professional institutions, yet they also pursued diverse and sometimes adverse objectives through other political and intellectual associations. A bold and powerful conservative elite occupied leadership positions at the university and the bar, while an equally dynamic rank-and-File boasted a variety of opinions, social backgrounds, affiliations, and ambitions. Few cities in Europe were as mobile, diverse, and divided as Barcelona, and lawyers were recruited from and continued to socialize with, meddle within, and mediate between social classes and families. A few practitioners were wealthy, others were penniless, but most were caught somewhere in the middle. A minority consisted of persons born into propertied families in the countryside, while the vast majority came from urban professional, middling, and even artisan classes. Some were piously religious, others were passively or sporadically observant, and a handful were Freemasons. A privileged and enviable elite interacted with the high bourgeoisie, but most represented a wide range of clients ranging from industrial and financial enterprises, to wholesalers, middlemen, and merchants, to blackmailers, contrabandists, murderers, counterfeiters, and small-time crooks. Those who expressed political affiliations during the civil code debates of the 1880s were, for the most part, members of the dynastic parties, the Liberals and the Liberal-Conservatives; however, some of the most prominent activists were also republican, Catholic integrist, regionalist, or Catalanist. Perhaps the most significant observation is that lawyers vehemently disagreed over civil law reform, especially when proposals touched issues regarding religion and property. These latter points of contention divided Catalonia, from right to left, from the early nineteenth century down to the Spanish Civil War (1936–1939), when the legal profession, along with the rest of society, also found itself in opposite, bellicose camps.	2
The diversity of this professional milieu is central to understanding the relationship between law and nascent nationalism. Despite such heterogeneity, lawyers and notaries eventually came to a consensus that Catalan law was not a "foral law" but a "civil law," historically or organically reflective of the distinctive "personality" or "spirit" of Catalans. What this exactly entailed was always vague, as Catalans never tired of bantering about their various distinguishing characteristics. Constitutionalist, hierarchical, liberty loving, paternal, democratic, Catholic, possessing an innate sense of tolerance and common sense (seny), of Roman origins, of Gothic origins, obedient, innovative, traditional, hardworking, and entrepreneurial were some of the most common descriptions. These were blended in original, eclectic, and often contradictory fashions depending on who was speaking and where one's ideological and material allegiances lay. As such, lawyers and notaries, despite having to tread lightly over sensitive and critical issues where the potential for agrarian violence constantly lurked, contributed to imagining a community sharing linguistic, cultural, and legal norms, even when there was never a clear consensus on what normality entailed. To be sure, this was and is nationalism's discreet charm: operating through a resilient discursive matrix rather than a fixed set of ideas, Catalanism bridged ideological and material divides in favor of necessarily impressionistic notions of identity, which proved capable of undergoing continual and dizzying metamorphoses. In fact, from the late nineteenth century to the present day, Catalan nationalism has maintained a right and a left, despite the existence of various individuals and groups claiming to represent a definitive, singular image of authenticity.	3
Second, I share Ledford's hesitancy to reclassify Catalan lawyers as nonliberal just because elite practitioners were implicated in political oligarchy or espoused paternalistic views on industry and family. Furthermore, the Spanish Civil Code (1889)--the only major European code of its day to conserve the seignorial institution of emphyteusis, and which still sanctioned a large degree of elective primogeniture through the use of the mejora--was not a "liberal" code by any comparative standards. Nor was the Catalan resistance to the Spanish Civil Code exclusively a conservative response to or gloss on liberalism. Interestingly, the notion that Castilian law was more "liberal" than Catalan law was an argument also put forth by Liberal Party politicians in Madrid, but this was contradicted by Catalan members of the same party.3 With whom we agree is a matter of personal opinion, but it is certainly subjective to declare that uncodified law was less "liberal" than codified law, or that laws granting testators broad authority over disposition were less "liberal" than rules mandating a more equal division of property among legitimate children, or that a legal profession that sought to control interpretation was less "liberal" than one that more easily accepted or succumbed to the monopoly of the state. As evidenced by the bundle of ideas expressed in the epigraph, opinions concerning the civil law did not fit cleanly into normative ideological categories. Political and jurisprudential cleavages tended to intersect as much as overlap.	4
Finally, Ledford's lucid analysis compels me to clarify my argument in order to address the issue of Weberian modernization. Although different interpretations are valid, I believe that the evolution of Catalan law--from a "foral law" to a "civil law"--conforms to, rather than casts doubt upon, the basic lines of Weber's legal theory. Much as the "charismatic" jurisprudence of Savigny's historical school ultimately lost out to the formal rationality of Pandectism in Germany,4 a similar process occurred in Catalonia. Liberal scholars, working at the Audiencia and the University of Barcelona, overhauled traditional Roman law scholarship previously developed at the defunct, Old Regime University of Cervera. Following the massive juridical reorganization of society, brought about by revolution and war during the first three decades of the nineteenth century, jurists standardized and formalized a decadent, diverse, and disparate legal tradition, which did not initially appear destined to survive the abolition of feudalism. Some intellectuals paid rhetorical homage to custom and romanticist depictions of agrarian society, while others invoked Savigny, the English common law, Montesquieu, and whatever and whomever else they could conjure up. Yet, practicing lawyers were keenly aware that Catalan law needed to be "formally rational" (to use Weberian terminology) in order to be applied in court, or else it risked extinction. They quietly but methodically embraced French jurisprudential style and organization without abandoning "Roman law" and without swallowing the substantive contents of the Napoleonic Code. Ultimately, guidebooks or legal manuals--single- or dual-volume works--were found on all lawyers' and judges' bookshelves, essentially functioning as de-facto "codes"; they lacked legislative force but garnered professional sanction. As I argued in my article, the value of examining Catalonia and other places outside the standard gamut of case studies does not derive from a disciplinary predisposition toward narrating exception, but from a desire to contextualize broad trends. In Catalonia as on the rest of continent, law was undoubtedly constructed and imagined to fit Europe's nationalist and positivist imperatives.	5
Notes 1 See Kenneth F. Ledford, "Codification and Normativity: Catalan 'Exception' and European 'Norm,'" Law and History Review 20 (2002): 385–92. The epigraph at the beginning of this response is from Gustave Flaubert, Sentimental Education, trans. Robert Baldick (London: Penguin, 1964), 180–81. 2 See Stephen Jacobson, "Law and Nationalism in Nineteenth-Century Europe: The Case of Catalonia in Comparative Perspective," ibid., 307–47.      The information that follows concerning lawyers and liberalism is derived from two related articles that I have published. See Stephen Jacobson, "Droit et politique dans l'Espagne du XIXe siècle. Les avocats barcelonais et les particularités du libéralisme catalan," Genèses 45 (December 2001): 4–26; and "Advocats a Barcelona, 1830–1880" in Societat, política i cultura a Catalunya (1830–1880), ed. Josep Maria Fradera, Barcelona. Quaderns d'Història 6 (2002) (forthcoming). 3 See, for example, the debates in the Senate between the Supreme Court magistrate Benito Ulloa y Rey and the Catalan lawyer Josep Maluquer. Diario de las sesiones de Cortes. Senado, 21 February 1885, 1291–95, 1315–21. 4 Here I follow James Q. Whitman, The Legacy of Roman Law in the German Romantic Era (Princeton: Princeton University Press, 1990), 229–34.

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