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Origins of Catalan law in ‘The Spirit of Catalonia’

Gerard Soler

It was the last years of the 1930s and the Spanish Civil War ended in a trail of death, misery and repression, arising from the ‘victory of fire and bullets’ against democratically constituted power. In this context, anyone who remained alive and was able to call in question the new regime thanks to word, annoyed. That is why a flock of intellectuals had to flee into exile. One of them was Dr. Josep Trueta, a renowned Catalan surgeon, who became professor of orthopedics at Oxford University, after settling in London. With a firm commitment with democracy and freedom, published in 1946 the book The Spirit of Catalonia, 168 pages of Catalan history and culture to try to raise awareness and mobilize British society, a key part of the allied powers, in an intervention against Franco and let Catalonia free from the dictatorial yoke. Of this masterpiece of post-war antifascist literature, I would like to point out, literally, some excerpts from Catalan law. Specifically, they deal with the particularities of Civil and Criminal law that have helped to shape its own legal corpus, from the Usatges as a compilation of customary law in the twelfth century, to the ‘Peace and Truce of God’, advocated by the abbot Oliba in the eleventh century, a revolutionary legal advance in the goal of defending human rights in the Dark Europe.

«In 1060 the Count of Barcelona, Ramon Berenguer I, called together his most notable subjects that they might provide his country with a written law. This decision, unprecedented at that time, must be considered the first determined effort to settle the unstable society of the eleventh century under reasonable juridical and moral principles. The work was so well done that the codification known by the name of Usatges (Usualia) has since been the basic law of the Catalan people, adapted, in successive times, to new conditions. The first article of the old Usatges gives information on the type of assembly which promulgated the law. Nineteen men met under the chairmanship of the Count: three viscounts, thirteen lords, and three jurists. They worked together until the first compilation was promulgated by the Count; though we know that this assembly in itself was not a parliament, yet the basis and spirit of the future Catalan Corts – or Parliament – were present in the law as it has been in the assembly. The word Usatges makes it clear that the code was a selection of rules established by custom, which those leading persons considered worthy of preservation and enforcement by written law. Among the most remarkable points were the recognition of equality in the civilian rights of burgesses and knights and the introduction of the humanitarian Constitutiones Pacis et Treugae (Constitutions of Peace and Truce) against the permanent state of violence that characterized the Dark Ages. This ‘Peace and Truce’ was for the first time established by the Church in Catalonia at the Council of Tologes (Rosselló) in 1041 and was afterwards also accepted by the majority of other western nations; and as it had been promulgated first of all by the Church of Catalonia, so the Catalan civil law was also the first to enforce the Pax Dei and the Treuga Dei, whose moderating influence on the customs of the times was one of the main causes of the end of the Dark Ages.

It has been said of the Usatges that is difficult to find another juridical document of the Middle Ages which combines such high dignity and such great sense of responsibility. Here in the middle of the eleventh century, the legislative potestas, the juridical source of power, the executive authority, the military power and the duties of the Prince (referring particularly to the protection of, and fidelity towards, his people of all ranks, from the nobleman to the most humble citizen), had already been established in written law. The Usatges laid down, one hundred and fifty years before the Magna Charta of King john, the foundation stone of an edifice which, when completed in the thirteenth century, was to be the first democratic structure of Europe. It seems an act of justice to mention, together with the name of the Count of Barcelona who promulgated the law, two other names, Count Ermengol of Urgell, of the house so intimately linked with the past of Catalonia, and Ponç Bonfill March the jurist, who between them gave the Usatges their form. At that time Castile has also granted her burgesses great freedom».