26 BartoloméClavero 2. The Law, according to itself Let us begin our subject by paying careful attention to the date. The Spanish Civil Code, with its preliminary title which tries to establish a notion of the legal system, belongs to 1889, towards the end of the nineteenth century. It is therefore belated, but not only because of the comparative reason that it is more than eighty years apart from the Napoleonic model, but because of more intrinsic reasons.^ It is an epigonal code, not an inaugural one; it arises nearly a century after the progressive implantation of the system that it represents, not after revolutionary process whatsoever which might have imposed its political and national ideas on Lawand Legal Order. A series of laws was developed in Spain throughout the nineteenth century to promote and add impulse to the order represented by the model of the French codification, but it does not mean that the Law system was moving either exclusively or fundamentally by means of legislation, or even that Law and legislation had finally become one and the same. In fact, an important part of the Law system was evolving, either by means of the customary law, through the development of local and regional traditions not subjected to present political controls, or by means of Justice, a judicial doctrine not so politically uncontrolled, but that adhered not only to the current law, but to its own understanding and adaptation of the historical tradition. These were the actual facts of the situation and the state of Law, as the laws themselves, although recalcitrantly and meanly, were compelled to recognise that it was so. This state of affairs is acknowledged to a certain extent by the Code itself, the Civil Code. That was the second point. It is after nearly a century in which a juridical culture had been being formed in Spain under the coordinates of legislation, judicial doctrine and customary law, and not only the first of these, it is after all this had happened that the preliminary title of the Civil Code ended up by adapting itself to such a situation, contradicting its heading. Let us look at what can be read in one of its articles: Lasprovinciasy territorios en que suhsiste Derecho foral lo conservaran por ahora en toda su integridad, sin que sufra alteracion su actual régimen juridico, escrito o consuetudinario, por la publicacion de este Codigo (The provinces and territories where a Derechoforal subsists will conserve it for the moment in all its completeness, without any alteration in its juridical regime, either written or customary, after the publication of this Code). Derechoforal, the adjective to be translated as pertaining to the Fueros, the privileges of a region or territory, is a Law that does not respond to present legislation, to contemporary norm of political decision; it is of not national but regional and local scope. As no political institution with legislative power exists as particular of these territories, only the Spanish ones ^ Bartolomé Clavero, Paolo Gross! y Francisco Tomas y Valiente (eds.), Hispania. Entre Derechos propios y Derechos nacionales, Milano 1990.
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