The Iberian Peninsula: Fueros, Usutpfes, and Royal Laws; The Siete Purtidas

On the Iberian Peninsula the fueros were the most prominent form of local law. Fuero is a term that has a number of meanings in the sources,^[97] one of which is particularly interesting for our purposes be­cause it touches directly on custom and on the ways in which custom­ary norms were preserved and passed on in everyday legal practice.

During the eleventh century, many Spanish cities had judges who, for professional purposes, owned brief summaries of customary norms known as fiteros breves. These collections grew and were con­solidated, and between the eleventh and the twelfth centuries more complete versions appeared—the fueros extensos—which for two cen­turies continued to be added to, modified, and at times translated from Latin into Romance dialects.

In the demesnial cities and towns these texts were granted a seal of authenticity and validity through appropriate recognition by the monarchy. Since it was the king who “conceded” to the demesnial cities the free use of local customary norms, town and city councils could present the fueros extensos, endowed with the royal “privilege,” to the urban population as significant conquests over the monarchical authority. In feudal cities and towns the fueros were validated by a pact, called concordia, drawn up with the lord of the land. In both cases, finally, some fiteros originated from dispositions registered by being inserted into a “population charter” or licentia populandi granted by a feudal lord or the king for the settlement of a relatively uninhabited area or a city that he had just conquered.

Among the fiteros extensos, those of Madrid, Toledo, Alcala de He- nares, Avila, and Cuenca in Castile (New Castile), Jaca and Saragossa in Aragon and Navarra, Leon and Salamanca in Asturias and Leon all deserve mention. Some of these fueros were known and applied far beyond the localities whose names they bear. One such was the fuero of Leon in Asturias and Galicia; another, the fuero of Toledo in much of Old Castile.

Besides the fueros (breves or extensos), there were usatges or usanciae in circulation, as well as costums or consuetudines, the contents of which (unlike those of the fueros) were not selected according to the needs of courtroom use. Such texts were typical of Catalonia, where their most striking examples were the Consuetudines Ilerdenses of Le- rida, widely used from the thirteenth to the fifteenth centuries, the Usatges of Tortosa, the Consuetudines gerundenses of Gerona, and above all two sets of laws from Barcelona confirmed by royal privi­lege, the Usatici Barchinoniae of 1251 and the Consuetuts de Barcelona Vulgarmente dites Io ^ccRecognoverunt Proceres” of 1284.

As in the Regnum Siciliae and in other large territorial entities in Europe during the later Middle Ages, Spain had kings who were par­ticularly keen on claiming and enjoying royal prerogatives. Such kings also manifested their monarchical power in the legislative sphere by conceiving projects for unified bodies of law that often re­mained a dead letter but that nonetheless encouraged both the idea and the reality of a dual level of the ius proprium. The minimal or lower level was the one of the free cities and the feudal territories and the laws that pertained in them and that the crown attached to itself by acts of privilege. The higher level, which offered a greater potential for territorial expansion, was occupied by the legislative provisions of the sovereign. These were often isolated acts promulgated to cover limited instances, but they might also be ample, carefiιlly articulated documents that on occasion even imitated ancient and time-tested models in their external form.

Like its classical model, Justinian’s Code, the Puero Juzgo (Forum Iudiciorum), a translation into Castilian of the seventh- century Lex Visigothorum, was divided into twelve books. The translation was made in the thirteenth century by command of Ferdinand III, who in 1230 became king of Leon and Castile, in practical terms the largest portion of the Iberian Peninsula and an area that stretched from the Atlantic to the north to the Mediterranean in the south. The sover­eign’s aim was to unify the laws of his new and larger realm under the sign of a glorious common tradition; in reality the Fuero Juzgo met with mixed fortunes and was accepted as city law only in some parts of the land (in Leon, Murcia, and Andalusia).

Under King Alfonso X (the Wise; d. 1284), more ambitious and more significant attempts were made both to bring order to the laws of the various cities and towns and to create a royal law for the entire kingdom of Castile and Leon. The first of these aims led to the pro­mulgation, in 1252-55, of a Fuero Real in the Castilian language. This was a royal legislative text that compared the principal municipal legal systems and that brought together and consolidated identical disposi­tions, simplifying and amalgamating similar ones, and attempting by this means to offer a homogeneous and uniform local law and impose it on the royal cities. The Fuero Real was conceded, by “privilege,” to a number of demesnial cities—Burgos (1256), Madrid (1262), and Valladolid (1265)—but it was never applied as broadly or as firmly as the sovereign had hoped.

The second aim led to the emergence in the thirteenth century of a Libro de las Leyes, also in Castilian, conceived of as a general law for the entire realm. Formed over several decades by successive additions, it grew from an original nucleus or first draft known as the Libro del Fuero or Especulo (1256—58), but its definitive redaction is known as SietePartidas from its division into seven books.

Beyond the problem of their specific application in judicial deci­sions, the Siete Partidas constituted one of the most important legisla­tive initiatives at the royal (and highest) level of the ius proprium. The reasons for the partial failure in practice of this compilation were also the reasons for its special significance in the overall fortunes of the ius commune in Europe. The SietePartidas attempted to transfer to a royal compilation the qualities and functions that had been inherent in Ro­man law and canon law throughout Europe for more than a cen­tury—an attempt that is all the more obvious for its perhaps vain hope of extrapolating from those highest laws and selecting the frag­ments that were thought the best, seeming almost to want to go one step further and integrate and harmonize provisions that came from the two quite different normative corpora of the Roman law and the canon law. Neither the challenge nor the operation succeeded in the thirteenth century, because it was the utrumque ius (Roman law and canon law) that had and was to retain the function of ius commune., thanks to its deep-rooted, sacred, and authoritative valence in that po- Iitical and cultural world. The ideology of a unified and Christian em­pire (the ideology of Dante Alighieri) underlay and governed the le­gal and cultural potential of a complex of norms that were thought of and experienced as “common law” for all the faithful in Christ within the confines of the empire. Thus, in spite of all efforts, the “royal law” proposed as a “general law” for a regnum was and remained ius pro­prium in relation to the utrumque ius.

For the thirteenth and fourteenth centuries, the historiographical problem is thus to grasp the relationships between the royal law and the ius commune and to understand how the latter was the reference point for all that was vital in the law. It is a problem that also crops up if the royal law of Castile and Leon is taken as positive law and if one tries to ascertain what gradations in the normative resources were imposed on the judges. According to the Ordenamiento of Alcala de Henares, near Madrid (1348, 1351), of Peter the Cruel of Castile and Leon, judges were to apply the royal laws of the Ordenamiento first, then local customary laws (provided they were long-standing and still in force), and the SietePartidas as a last resort. Comparison with what was happening elsewhere in Europe—in particular in Italy, in the Regnum Siciliae and the communes—shows parallels that make it tempting to identify the Siete Partidas with what was elsewhere Ro­man and canon ius commune., hence to substitute its laws for Roman and canon law and to understand it as “common law,” assigning to it a value, dignity, and function equal to those of the ius commune.

5.