1 - The Lawyers’ Reality: Wrongdoing in Spain in the Era of Codification

Summary

The way lawyers constructed and responded to ‘wrongdoing’ in Spain in the period 1800–1936 is a complex tale of formal sources and underlying movements in legal thought. The progression of legal forms does not represent a simple progression towards a communally agreed goal. Rather, legal actors responded to shifts and currents within intellectual movements, and different groups, with different interpretations, held sway at different times. In addition, it is unclear how much the lawyers’ reality reflected, or created, the reality of the citizen. Lawyers had aims and objectives, in part reflecting what reformers viewed as the pinnacle of legal thought. That thought was almost certainly not the same as that of the citizens on the street. In addition, the pattern of change was complicated by a blending of many legal sources. In particular, legal change in the era of codification did not take place through an extirpation of earlier legal rules and legal culture. Rather, new and old ideas merged in a system where tradition was both respected and rejected, and where contradictions, whether in legal rules or in the way those rules played out in practice, were common.

This chapter will attempt to introduce the lawyers’ construction of wrongdoing and the relationship between that view and society's view in the period from 1800 to 1936. It will consider in turn the topics of constitutionalism and codification, the unity of criminal law, the objects of the criminal law and the punishments of the criminal law. In so doing it will serve as an introduction to the way that wrongdoing was conceived of over this period. It will also provide a context for seeing how wrongdoing was responded to. This legal perspective is arguably fed by, but certainly feeds back into, non-legal contemporary views of wrongdoing. The chapter will focus on formal legal sources, especially the criminal codes of the period.

The form and purposes of the law changed significantly from 1800, with the legal framework within which society operated being reshaped (though not entirely replaced) through the influence of new liberal intellectual movements. Spain had for centuries used a detailed and advanced set of legal rules, in the form of the Siete partidas de Alfonso el Sabio, originally simply called the Livro de las legies or ‘book of the laws’, and most likely completed around 1265.