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Fueros

From Academic Kids

Fueros is a Spanish legal term and concept; there is a similar Portuguese term, Forals. The word comes from Latin forum, an open space used as market, tribunal and meeting place. Fuero has meant several things: a compilation of laws, especially a local 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); a charter. It 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 (most notably, the Basque Country) 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 John Adams, who cited the Viscayan fueros as a precedent for the United States Constitution. 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 were (depending on one's point of view) wrested from the monarch in exchange for the general acknowlegement of his or her authority, granted by the monarch to reward loyal subjection, or (especially in the case of towns or regions) simply acknowledged the 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 (ecclesiastical, i.e. church-operated, courts, tried churchmen for criminal offenses). The powerful Mesta organization, composed of wealthy sheepherders, enjoyed vast grazing rights in Andalucia 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 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 of an existent place were granted to another, with small changes, instead of crafting a new redaction from scratch.

In the 20th 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.

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Regional Fueros

In contemporary Spanish usage, the word fueros most often refers to the historic and contemporary fueros 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 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.

Castile absorbed Western Navarre during the 12th century. In order to gain Navarrese loyalty, fueros were granted allowing the region to continue to function under its historic laws. Between 1512 and 1526 the united crown of Castille and Aragón incorporated more of Navarre (up to the summit of the Pyrenees). The fueros also extended to these lands. (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 a quasi-independent Basque region successfully maintained its fueros. Every Biscayne was a born hidalgo (gentry), thus free of taxes and able to serve in the army and the public administration. In contrast to Spanish hidalgos, Biscaynes did not refuse manual work as a means of life. Some resented the formation of Biscayne cliques in the Castilian administration.

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.

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 fief jigsaw was reorganized in départements, based on administrative and economic concerns, not tradition.

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Spain in 1850; the colors represent the different bailiwicks.

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 their strong support 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, which granted a substantial autonomy to the provincial governments within the Spanish state.

Sabino Arana 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 and miqueletes) and road works.

The post-Franco Spanish Constitution of 1978 acknowleges "historical rights" and attempts compromise in the old conflict between centralism and federalism by the establishment of autonomous communities(e.g. Castile-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's Alavese foralismo as represented by Unidad Alavesa strengthens the Alavese identity against what Unidad Alavesa consider 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. 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 capital Bilbao, a villa, than in the country towns (tierra llana). Modern jurists try to modernize the foral family laws while keeping with their spirit.

Fuero, philological meaning assimilable to "Right"

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Fuero by Archbishop of Toledo Father Llorente and Alfonso X the learned Fuero Juzgo.
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Fuero by Alfonso X the Learned in his compilation of laws known as Seven Partidas or Fuero Juzgo.
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Fuero juzgo, compilation by Alfonso X the Learned
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Fuero juzgo, compilation by Alfonso X the Learned

Comment and contextualization about archibishop Llorente books:

Those four documents are taken from a Spanish would-be encyclopædia that started and ended with the four tomos dedicated to the Basque Provinces. Archbishop Llorente of Toledo even denied Alfonso X's own Seven Partidas (a compendium of Christian Iberian fueros made around the year 1220) or credited to the Castilian king many fueros first given by the Navarrese. Certainly during the Godoy régime Castilian historiography worked very hard to build a new Spanish order, a centralized and homogeneous state eliminating the differences among the Castilian system of laws, Basque fueros and Aragonese-Catalan institutions (their fueros were also suppressed in 1717.) To accomplish such a goal, they undertook a considerable editorial effort, exemplified in archbishop Llorente's Noticias históricas de las tres provincias vascongadas.

In any event, the meaning of fuero at that time would be the same as today's idea of a "right" in its acceptance of a juridicial and political system of rights: a constitution, magna carta, or any other system of primary laws. But in its beginnings, fuero was a compendium of uses and customs, natural law, hereditary laws, even pre-Christian divorce law (which was very disputed and resulted in an unsuccessful attempt by the Church to suppress in Navarrese fuero [1] (http://www.euskadi.net/q56/q56ControladorServlet?mapping=detalleMonografia.do&accion=2&idObjeto=2061619&idLibro=09600022012): Origin and legal authority of FUERO GENERAL DE NAVARRA]). and, most important, a system of election of lord, king and limitative of the rights he would have along with the election of the representatives councils.

The fuero also was mean to be ruled under Roman and Gothic power, same by Basques, Vascons, Cantabrians and Astures. They were an orally transmited code of uses and customs and effectively ruled through a system of councils (concejos or Basque batzarres) and representatives that applied such rule, although it didn't take its historically known forms until the first Romance language started to be written in the 11th or 12th century. Previously, there existed written Cartas puebla, but almost all of them have disappeared, along with other original fueros, due to wars and fires.

The negative connotations of the word fueros started with the Godoy régime's editorial effort directed to suppress the Basque provinces' system and to extend the frontiers of centralized Spanish taxation and military control to the Pyrenees. These negative connotations were sharpened in 1824's short-lived constitutional Triennium and the subsequent Carlist War, in which the Basques aligned with the Carlists in a close defense of their political and institutional system while the Catalans tried to reinstate their fueros, which had been abolished in 1717. That "editorial war" continued all through the 19th century and part of the 20th century. It can be claimed that the major internal political conflicts in Spain today continue this same same historic-political core, albeit generally using different words.

There is also the French school of doctrine that sustains that the fueros (Basque, Navarrese, Aragonese and Catalan, from both the north and south side of the Pyrenees) were simply the original Pyreneean juridicial system. Hosca (Huesca), high in the Pyrenees, main city of Sobrarbe County, has the first of all written fueros, dating from when it was part of the Vascon kingdom of Navarre and ethnically Basque (there even exists an 18th century decreeforbidding the use of the Basque language in the market.)


John Adams view of the Forua of Bizkaia

John Adams, later the second president of the United States, traveled to Europe in 1779 to study and compare various forms of government. He visited Bizkaia (alternately Viscaya, Biscay), one of the Basque provinces. In "A defense of the Constitution of the United States" (1786), he cited Biscay as a precedent for republicanism:

In a research like this, after those people in Europe who have had the skill, courage, and fortune, to preserve a voice in the government, Biscay, in Spain, ought by no means to be omitted. While their neighbours have long since resigned all their pretensions into the hands of kings and priests, this extraordinary people have preserved their ancient language, genius, laws, government, and manners, without innovation, longer than any other nation of Europe. Of Celtic extraction [Adams erred on this point], they once inhabited some of the finest parts of the ancient Boetica; but their love of liberty, and unconquerable aversion to a foreign servitude, made them retire, when invaded and overpowered in their ancient feats, into these mountainous countries, called by the ancients Cantabria...
...It is a republic; and one of the privileges they have most insisted on, is not to have a king: another was, that every new lord, at his accession, should come into the country in person, with one of his legs bare, and take an oath to preserve the privileges of the lordship.

Authors such as Navascues, and the Basque-American Pete Cenarrusa, former Secretary of the State of Idaho, agree in stressing the influence of the Forua of Bizkaia (Biscayan code of laws) on some parts of the U.S. Constitution. [2] (http://www.basqueheritage.com)

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