Basque civil law is the civil law partially applicable in the Spanish or southern part of the Basque Country.
History “Flanked by three universal influent juridical systems, the Roman law, which seems to face two contradictory laws, the canonical and the civil ones; the Germanic Law, that leaks out through the Corpus Iuris cracks, and flourishes in an uncountable number of local laws, and the Islamic Law, that pretends to impose its Koran unitary rule to all abroad, the Basque people introduces us into its own juridical system developed according to the following patterns: The Private law sets the woman full capability and under all circumstances equality to man; the indivision of the Family Heritage and therefore emancipating the non inheriting offspring; as well as giving the neither cultivated nor fenced soil a ruling main character to ease the non heirs to gain their own wealth. The Public Law gives the Family house a public law entity status, so that the house chief is also the judge having jurisdiction when acting in behalf that house (etxe-jauntza); and articulating the country’s personality in the basis of the presence of all Basque Family chiefs in a Assembly, the whole country’s Assembly, without which the King’s Lord nor has rights other than his own office, neither is entitled to modify the Country’s Law. Traditionally the basque chiefs "jauntxos" were the embodiment and judges of the law. Some authors suggest modern day Public law is expressed in the Basque noun “jauntza” that in those times was far from meaning the power of the Landlord, but that every Basque individual was a Lord himself”.1.[Leizaola, J.M.: Contribución de los vascos a la formación y a la Ciencia del Derecho. San Sebastián, 1935. Pgs. 15 and 16].
Theoretical summary and thematic development
1.1. Concept: According to the Dictionary of the Royal Spanish Language Academy, “Foral” is the adjective of the noun “Fuero” that in juridical English means: a) jurisdiction, which either can be classified in terms of the kind of applicable Law (i.e. Ecclesiastical, Secular, Civil, Administrative, Labour...), or under territorial criteria; b) the code of laws applicable to a case, or c) in, a territorial sense, as a Charter. We must highlight that the aforementioned dictionary's second meaning for “Fuero“ is “a historical rule or code given to a specific territory. [For example t]he fueros of Navarra and the Basque Country.”
Etymologically, fuero derives from the Latin word “”, that is the place where the court hears the causes, and not from “foedus”, also in Latin, treaty, pact or alliance, which is coherent with the historical origin of the Basque Charters as juridical corpus applicable to determine either the lawsuit itself or the competent jurisdiction to judge that lawsuit. Also merges with the historical origin of both the villages' charters and the countryside's charter.
The term chartered law was used for its real first time in a letter sent by the University of Valencia staff to the King Charles the Third, with occasion of his accession to the Throne, applying for reestablishment of the Region of Valencia Civil Charter abolished by Phillip the Fifth. Nowadays, Chartered Law means, a formal statement of the rights of a country's people both in the public and private Law areas, but sin 1759 on, the term is used in Spain to name the peculiar Civil Law of the territories that resisted the centralization politic initiated by Phillip the Fifth.DERECHO CIVIL VASCO. Adrián Celaya Ibarra. Ed. Deusto, 1993.
1.2. The Basque Charters: The characteristics of a juridical system: A congress held in Andorra about the Law stated that, prior to the French Revolution the Law in the northern side of the Pyrenees had many points in common with the Law in its southern side. It was deemed as proved that the Pyrenean Law is a peculiar regulation that only arbitrarily could be classified as Roman or Germanic. It is stated that the Basque Law fully adapted to the economy within, as well as to the Basque People social life. A Country of farmers and small artisans, isolated homesteads and almost domestic industries had to ensure the conservation of the Family Heritage, avoiding its division due to dire consequences. So the Biscay Charter does, permitting the testator to transfer his heritage, focused on the Homestead, either to just a single inheritor or to freely distribute it among his progeny.El horizonte actual del Derecho. AVD-ZEA. Bilbao, Junio 2004, núm. 2, pp 3–18. Adrián Celaya.
As manifestations of a common background of the Basque Charters, we can identify, in the Public Law area the creation of a complete institutional and political own system based on: a) Internal free trade. b) Taxes exemption. C) Contribution to the Crown through a fiscal given. d) “Pase Foral” or non-compliance with those King's Acts in contradiction with the Charter, c) Compulsory military service exemption and f) a system of individual rights, inviolability of the domicile and prohibition of torture.
In the private law area: a) Freedom of testation (among the descendants). b) Unity and indivisibility of the Family Heritage. c) Agreement as to Succession and Marriage Contract as titles to transfer the Family Heritage, not only by means of the Roman testament. e) The marriage universal community of property and f) a concept of the property focused on the family, far from the Liberal individualist definition.
1.3. The Basque Charters, a territorial reality: Nonetheless the aforementioned common background, “It is a remarkable Basque peculiarity that the different territories considered Basque have never joint into a political unity, with the sole exception of the Reign of Sancho the Great from Navarre. Every Basque territory has lived its own History and, in spite of some similarities, with also remarkable differences, has created its own legal system. Therefore it is necessary to separately analyse the different Charters throughout every corner of the Basque Land. The essence of the Basque Law should be discovered in a later work, to try to infer, above the peculiarities, among the variety of rules and institutions all what is shared”.Íbidem.
Charters of Biscay, Álava and Gipuzkoa, in particular
The custom is the original Basque Law, born from the free and spontaneous juridical activity of the fellow citizens, the experience and the clash of the economical interests. Its result is the sequence of charters that are “written”, that is, more than Act enactments, mere record of the precedent usages.
The most accurate juridical meaning for the word fuero is found in the first “Partida” which states: “Charter is a concept that includes two aforementioned things, custom and usage, which both must enter into the Charter to become in force. Custom as long as men must get used to and love it. The usage is like an agreement that is to be handled and observed, and if the Charter is right, made of good usages and customs, turns into Law as long as keeps humankind in peace and justice…”.
So, the point is not “a Royal enactment upon the Court or the concession by the competent authority of a Charter of establishment of a Village, but mainly the cultural fact of Law writing and the subsequent availability of knowledge, lawsuit, concession as privilege, and its value as a documentary proof mean”.Ana María BARRERO GARCÍA. Los Fueros de las Encartaciones y otros fueros contemporáneos. FEDHAV. Iura Vasconiae, 5/2008, 103–149.
And Ana María BARRERO GARCÍA concludes: “though the observation of the data resulting from a vast number of local charters from different dates and regions, it seems that this work was characterized by its intensity and insecurity, due, no doubt, to the technical difficulties inherent to the effort of abstracting the daily activity of authorities and fellow citizens to a written regulation; to the deficiencies related to the knowledge of the usage that might pop up; or the actual being of their recording documents. It is therefore not surprising that there could be different versions of the same local Charter, all of them suitable of being acknowledged as so; hence a certain version might not be considered as the definitive one”.
Biscay
A “race” between the villages and the countryside can be observed during the low Middle Age in order to leave a written, official, testimony of their characteristic Laws.
Countryside
a) The first legal text ruling the “Merindad” (County) of Durango, Biscay, was enacted by the King of Navarre Sancho the Wise and written in a missal of the church of Saint Agustin of Echevarria approximately in 1.200 b.c. Circa 1.342 b.c. the Charter of the County of Durango was written, including the custom and usage about succession, property, Criminal law, etc., till then orally transmitted. This Charter lasted till the enforcement of the Charter of Biscay, which was not initially accepted by the people of Durango, who preserved for a while the application the aforementioned own legal text.:es:Merindad de Durango b) The Charter of Abellaneda of 1394.:es:Las Encartaciones The Charter of Custom and Usages in force in the County of “Las Encartaciones” was written in 1394, 58 years before the redaction of the Biscay Charter. This Encartaciones first Ordinance or Charter, edited under the impulse of the Mayor appointed by the King Gonzalo Moro, had 45 articles or epigraphers. Inspired by the Brotherhood Ordinance of Biscay, was led by a preface, changed some penalties, inserted some original provisions and added some civil regulations. d) The Old Charter of 1452. This Charter is divided into 210 chapters or norms (unnumbered, Astuy's edition aside) that rule diverse issues: The oath of the Lord, trade freedom, fiscal freedoms, process warranties, etc. as well as a vast number of civil provisions. In 1506-02-11, by means of the Mayor appointed by the King Vázquez de Acuña application, a revision of some regulation was held, the most interesting one, the provision, in order to avoid the application of Roman or Canonical sources in the interpretation of the Biscayan Law, the latter literal interpretation. e) The Charter of the Encartaciones in 1503 includes 111 chapters or provisions. The last 38 ones are the Common Law charter, mainly Civil Law. The text also comprehends the Neighbours' Charter applicable on Salcedo and Gordejuela valleys. f) The New Charter of 1526 includes 36 epigraphs divided into an unbalanced number of norms. It is an incomplete text since its ignores many institutions, something logical in some cases due to the subsidiary enforcement of the Law of Castile, but not about some Biscayan deep-rooted customs, specifically in the Public Law area, where, as a matter of fact, it is remarkable the absence of any regulation about the notification and functioning of the Biscay County Assembly. However, the Charter rules the utmost important institutions, and mainly, the essential freedoms that constitute the Charter regulation.
The villages vs. the countryside of Biscay
As in the rest of territories of the Iberic peninsula, the need to use legal texts reflecting their own Law, prompted the achievement of the first results in urban areas, either in the Encartaciones, Biscay or Durango, before these Counties’ Countryside did. The aforementioned urban Charters, basically imitated Logroño's one. The Villages were established from 1199 on: Balmaseda, Orduña (1229); Bermeo (1236); Lanestosa (1287); Plencia/Gaminiz (1299); Bilbao (1300); Ochandiano (1304); Portugalete (1322); equeitio (1325); Ondárroa (1327); Villaro (1338); Marquina (1355); Elorrio (1356); Guernica y Guerricaiz (1366); Miravalles/Ugao (1375). The last three ones were established upon Biscayan people's request to defend themselves from the Gang Wars: Munguía, Larrabezúa and Rigoitia in 1376. The Villages of Durango and Ermua, established in 1212, enacted their Charter in 1372.