Nativismand transnationalism 27 exist, the Dcrccho /oral is presently substantially customary. And it is maintamed as such. The Civil Code says nothing concrete about the value of the judicial doctrine. It repeats a Napoleonic principle of subjection of the judge to the Law, the normof political decision, but with an addition that may detract fromit: El Tribunal que rehuse fallar a pretexto dc silencio, obscuridad o insuficicncia de las leyes, incurrird en responsabilidad. Cuando no haya ley exactamcnte aplicable al punto controvertido, se aplicard la costumbre del lugar y, en su defecto, los pnncipios generales del Derecho (The Court that declines to pronounce a resolution, on the grounds of silence, obscurity or insufficiency of the laws, will be liable to responsibility. When no laws are exactly applicable to the controversial point, the local custom or, for the lack of it, the general principles of the Law will be applied). This addition is not as important because of what it says, as for what it implies: To recognise the Customary Law for lack of legislation does not mean very much when the Derechoforal can prevail over it, over the legislation. And the concept of Principios generales del Derecho is something uncertain. What is important is that the Law is kept open, that it is not bound by the legislation. Several judicial and procedural codes, preceding the civil one, had entrusted this opening to the Judiciary, to a judicial structure whose formation was concretely hierarchical under the doctrinal authority of a Supreme Court; they had attributed to the positions of this doctrine the value of doctrina legal, equivalent to Act and therefore to Law, that is to say, the same legal character as the legislation — the written law.'* The Civil Code does not mention any of this, but this is what it covers and maintains when it admits the fact that the legal order is open, by means of such a vague final reference to a General Principles which, if they have such a nature, cannot be situated at the final place. That was the field of the judicial doctrine, not as subordinated however to the Law. It is easy to see how misleading this heading is; and so is the code itself and the existence of such a Spanish Civil Code which, in itself, does not imply what other European codes do about the conception and determination of the legal system. It is to be noticed that here there is not even a clear prevalence of the legislation, although that is the proclaimed principle, whose application, however, exists only for some territories, those which do not have a customary Law, or not forales. As for the sufficiency of the Law, even less can be said. It must not be believed, moreover, that this was only applicable in the subject of civil Law, in some of its chapters. In fact there were territories where this even extended to political matters, territories where, at the time of the Civil Code, there was a political Law of customary character, which extended on the fringe of the laws but that was effective. It was also Derechoforal. I have ■* Jacques-Bernard Herzog, Le droit jurisprudentiel et le Tribunal Supreme en Espagne. ELssai sur les conditions de creation du Droit par la Jurisdiction de Cassation, Toulouse 1942.
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