Fuero
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Fuero (Spanish) is a Spanish legal term and concept. The word comes from Latin forum, an open space used as market, tribunal and meeting place. The same Latin root is the origin of the (French) word foire and the (Portuguese) words foral, forais and foro; all of these words have related, but somewhat different, meanings.
The (Spanish) fuero has a wide range of meanings, depending upon its context. It has meant a compilation of laws, especially a local or regional one; a set of laws specific to an identified class or estate (for example fuero militar, comparable to a military code of justice or fuero eclesiástico, specific to the Church). In many of these senses, its equivalent in the Anglo-Saxon world would be the charter.
Fuero dates back to the feudal era: a fuero could be conceded or acknowledged by the lord to certain groups or communities, most notably the Roman Catholic Church, the military, and certain regions that fell under the same monarchy as Castile or, later, Spain, but were not fully integrated into those countries.
The relations among fueros, other bodies of law (including the role of precedent), and sovereignty is a contentious one that echoes down to the present day. The various Basque provinces generally regarded their fueros as tantamount to a constitution, a view that has been accepted by others, including President of the United States John Adams, who cited the Biscayan fueros as a precedent for the United States Constitution. (Adams, A defense…, 1786) This view regards fueros as granting or acknowledging rights. In the contrasting view, fueros were privileges granted by a monarch.
In practice, distinct fueros for specific classes, estates, towns, or regions usually arose out of feudal power politics, and (depending on one's point of view) were wrested from the monarch in exchange for the general acknowledgement of his or her authority, were granted by the monarch to reward loyal subjection, or (especially in the case of towns or regions) simply acknowledged distinct legal traditions.
In medieval Castilian law, the king could assign privileges to certain groups. The classic example is the Roman Catholic Church; the clergy did not pay taxes to the state, enjoyed the income via tithes of local landholding, and were not subject to the civil courts: church-operated ecclesiastical courts tried churchmen for criminal offenses. The powerful Mesta organization, composed of wealthy sheepherders, enjoyed vast grazing rights in Andalusia after that land was "reconquered" from the Muslims (see Reconquista). Lyle N. McAlister writes in Spain and Portugal in the New World that the Mesta's fuero helped impede the economic development of southern Spain, creating the pressure that encouraged Spaniards to emigrate to the New World.
The military had similar fueros; the situation was not unlike the distinction of military law today. It has been argued that the military fuero is part of the military culture of Latin America, which has been partially blamed for the various military coup d'etats of the 20th century.
During the Reconquista, the feudal lords granted fueros to some villas and cities, to encourage the repopulation of the frontier and of commercial routes. These laws regulated the governance and the penal, process and civil aspects of the places. Often the fueros already codified for one place were granted to another, with small changes, instead of crafting a new redaction from scratch.
In the twentieth century, Francisco Franco's regime used the term fueros for several of the fundamental laws (as in Fuero de los Españoles, issued July 17, 1945). The term implied these were not constitutions subject to debate and change by a sovereign people, but bills granted by the only legitimate source of authority, as in feudal times.
Regional Charters
In contemporary Spanish usage, the word fueros most often refers to the historic and contemporary fueros or charters of certain regions, especially of the Basque regions.
In the last days of the Western Roman Empire, the Basques are supposed to have played a prominent role in the Bagaudae (peasant revolts resisting the dawn of feudalism). The Basques successfully maintained their independence from the Germanic tribes such as the Goths, forming the Duchy of Vasconia (centered in present-day Gascony and dynastically connected to the Duchy of Aquitaine). As the Muslims invaded the Iberian Peninsula, Vasconia and Aquitaine sought the aid of Charlemagne and subsequent Carolingian monarchs, resulting in a certain amount of assimilation; however, during this period, a bit to the south, a new Basque nucleus grew, in the form of the Kingdom of Pamplona, later known as the Kingdom of Navarre. Navarrese law developed along less feudal lines than those of surrounding countries. In 1234 when the first foreign king the french Theobald I of Champagne arrived didn't know navarrese common law and it was necessary a commission to write it; that was the first fuero.
Castile absorbed Navarre between 1512 and 1526 (up to the summit of the Pyrenees). In order to gain Navarrese loyalty, fueros were granted allowing the region to continue to function under its historic laws. (Meanwhile, northern Navarre became increasingly tied to France, a process completed when a Navarrese prince became King Henry IV of France.) Although not without conflicts, until the era of the French Revolution on both sides of the Pyrenees quasi-independent Basque regions successfully maintained their fueros.
Every Biscayne or Guipuscoan was a born hidalgo (gentry), thus free of torture and to serve in the army. (Don Quixote's Sancho Panza remarked humorously that writing and reading and being Biscayne was enough to be secretary to the emperor).
The Aragonese fueros were an obstacle for Philip II when his former secretary Antonio Pérez escaped the death penalty by fleeing to Aragon. The king's only means to enforce the sentence was the Spanish Inquisition, the only cross-kingdom tribunal of his domains. Pérez escaped again to France, but Philip's army invaded Aragon and executed its authorities. The Inquisition however had frequent conflicts of jurisdiction with local civil authorities and bishops[1].
However, the Revolution brought the rise of the centralized nation state (also referred to in a Spanish context as "unitarianism", unrelated to the religion of the same name). Whereas the Ancien Régime had allowed for regional privileges, the new order did not allow for such autonomy. The jigsaw puzzle of fiefs was rationalized into départements, based on administrative and economic concerns, not tradition.
During the two centuries following the French Revolution and the Napoleonic Era, the level of autonomy for the Basque regions within Spain has varied. The cry for fueros (meaning regional autonomy) was one of the demands of the Carlists of the 19th century, hence the strong support for Carlism from the Basque Country and (especially in the First Carlist War) in Catalonia and Aragón. Thus, the Carlist effort to restore absolute monarchy was sustained militarily mainly by those whom fueros had protected from the full weight of absolutism. The defeat of the Carlists in three successive wars resulted in continuing erosion of traditional Basque privileges.
The Carlist land-based small nobility (jauntxo) lost power to the new bourgeoisie, who welcome the extension of Spanish customs borders from the Ebro to the Pyrenees. The new borders protected the fledging Basque industry from foreign competition and opened the Spanish market.
The new class negotiated the Ley Paccionada (in Navarre), which granted a substantial autonomy to the provincial governments within the Spanish state.
Sabino Arana, founder of the Basque Nationalist Party, came from a Carlist background. He rejected the Spanish monarchy and founded Basque nationalism on the basis of Catholicism and fueros (in old Basque, Fueroac; Standard Basque, Foruak; Arana's neologism, Lagi-Zaŕa, "Old law").
The high-water mark of a restoration of Basque autonomy in recent times came under the Second Spanish Republic. This led the Basque nationalists to support the left-leaning Republic as ardently as they had supported the right-wing Carlists. The defeat of the Republic by the forces of Francisco Franco led, in turn, to an unprecedented crushing of differential Basque culture, with even public use of the Basque language banned.
The Franco regime considered Biscay and Guipúzcoa as "traitor provinces" and cancelled their fueros. However the pro-Franco provinces of Álava and Navarre maintained a degree of autonomy unknown in the rest of Spain, with local telephone companies, provincial limited-bailiwick police forces (miñones in Alava, and Foral Police in Navarre), road works and some own .taxes
The post-Franco Spanish Constitution of 1978 acknowledges "historical rights" and attempts compromise in the old conflict between centralism and federalism by the establishment of autonomous communities (such as Castile and León, Catalonia, Valencia, etc.). The provincial governments (diputación foral) were restored, but many of their powers were transferred to the new government of the Basque Country autonomous community, though the provinces still perform tax collection in their respective territories, coordinating with the Basque, Spanish and European governments.
Today, the act regulating the powers of the government of Navarre is the Amejoramiento del Fuero ("Betterment of the Fuero"), and the official name of Navarre is Comunidad Foral de Navarra, "foral" being the adjectival form of fuero.
The fuerismo of the 19th century called for autonomy within Spain. Today, Alavese foralismo strengthens the Alavese identity against what it considers excesses of Basque nationalism.
Private law
While Fueros have disappeared from Spanish administrative law (except for the Basque Country and Navarre), there are remnants of the old laws in family law. When the Civil Code was established in Spain (1888) some parts of it did not run in some regions. In places like Galicia and Catalonia, the marriage contracts and inheritance are still governed by local laws. This has led to peculiar forms of land distribution.
These laws are not uniform. For example, in Biscay, different rules regulate inheritance in the villas, than in the country towns (tierra llana). Modern jurists try to modernize the foral family laws while keeping with their spirit.
Some fueros
Notes
- ^ Inquisición at the Auñamendi Encyclopedia.
References
- Adams, John A defense of the constitutions of government of the United States of America (1786) The Biscayan Fueros are discussed in his letter IV.
- Llorente, Juan Antonio Noticias históricas de las tres provincias vascongadas. Tomo II, Capitulo I. (1800) Available (in Spanish) online through the Digital Library of the Sancho El Sabio Foundation.
- McAlister, Lyle N., Spain and Portugal in the New World. 1984, Univ of Minnesota Press, ISBN 0-8166-1216-1.
- "Los Fueros de Navarra: Exposición" - discussion of fueros on the official web site of the Navarrese government (in Spanish).
- Much of the discussion of the Basque fueros comes from es:Nacionalismo vasco in the Spanish-language Wikipedia; last updated from the version dated 11:44 23 Sep, 2004.
- Fueros de la Rioja, a collection of the local Medieval charters of several towns in La Rioja, in old Castilian or Latin.
- Fuero at the Dictionary of the Real Academia Española.
External links
- A digitized version of Amalio Marichalar, Marqués de Montesa, Historia de la legislación y recitaciones del derecho civil de España : Fueros de Navarra, Vizcaya, Guipúzcoa y Alava, 2ª ed. corr. y aum., ("History of the legislation and recitations of the civil law of Spain; 2nd edition corrected and augmented") Madrid : [s.n.], 1868 (Impr. de los Sres. Gasset, Loma y compañia) p.; 8º mayr is available on the site of the Biblioteca Nacional Española.