RS 19

Nativismandtransnationalism 29 autonomy and social spontaneity. And all this does not fail to be applied to concrete points of the Civil Code, in the subject of Family as well in that of Property and Inheritance, due to the scarce margin that it left effectively to liberties in this basic field of the human coexistence.^ According to its own notions, the codification had not been of great parliamentary creation, but this was not the constitutional question raised there. The idea that the Law, this rule of political decision, could prevail over the individual autonomy and social autodetermination, could not be accepted even in the case, hypothetical at the time, of a democratic parliament. And this undervaluation of the Law did not mean here a valuation of the judicial doctrine, of a judicial order, as this was politically quite controlled, with also no presence of the jury in the civil field. All this led to a real constitutional exaltation of the custom, of the social capacity to evolve more spontaneously to an order of liberty. 4. Nativist reading of the Code The juridical culture did not really favour the Code.^ The Code itself had already reduced its aspirations. But there was not a convergence, quite the reverse. The timid attempt of the Code to set up the principle, no more than the principle, of the prevalence of the Lawand its equivalence with the legal order, was unsuccessful. On one hand, it did not obtain an exegesis; on the other hand, the opposition became stronger. That was the third and principal point that it posed, that of the reception of the Code. In Spain it cannot be said that there was any exegesis; this juridical culture, at the service of the codification, does not exist. Universitary education itself, although the University was dependent on the State, proved not to be very exegetic; the study plans were not positivist, but their historical, philosophical and comparative expositions were rather open, more than the codification itself. The different codes, the commercial, the criminal, the procedural codes, and finally the civil one also, generated a commentary but this was a genre which was not confined to its legalist presumptions. The preliminary title of the Civil Code did not open any perspective, but it tried to adapt itself, not very successfully, to an already open panorama.^ In addition to this, the critical jurists sharpened their positions after the arrival of the Civil Code. They did it from the standpoint of the Code, trying to Bartolomé Clavero, El mctodo cntre infieles o el codigo en Espana, in Quaderni Fiorentini, 20, 1991, pp. 271-317. * Juan-Jose Gil-Cremades, El reformismo espanol. Krausismo, escuela histörica, neotomismo, Barcelona 1969; Eh'as Diaz, La filosofia social del krausismo espanol, Madrid 1973. ^ Bartolomé Clavero, Arqueologia constitucional: empleo de universidad y desempleo de derecho, in Quaderni Fiorentini, 21, 1992.

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