Friday, May 20, 2011

Two from Mirow on the Constitution of Cádiz

Matthew C. Mirow, Florida International University College of Law, has posted two new articles on the Spanish Constitution of 1812, also known as the Constitution of Cádiz.

The Legality Principle and the Constitution of Cádiz  is forthcoming in JUDGE’S ARBITRIUM TO THE LEGALITY PRINCIPLE: LEGISLATION AS A SOURCE OF LAW IN CRIMINAL TRIALS, Markus Dirk Dubber, Georges Martyn and Heikki Pihlajamäki, eds., Duncker & Humblot, 2012.  Here's the abstract:
The reform of criminal law was an important aspect of the Constitution of Cádiz and one that was commented on and explained at length. Although not containing a list of enumerated rights, the Constitution provides for some individual rights, including rights of the criminally accused, at various places in its text. Fearful of unrestrained royal authority to imprison individuals, the Constitution prohibits the king from depriving individuals of their liberty or imposing punishment. It criminalizes actions of executive or judicial officials carrying out such royal orders. When, on account of the security of the state, officials detain an individual on the king’s order, the accused is afforded presentment before a judge within 48 hours. The Constitution places similar prohibitions on the king’s power to seize property. (Art. 172). In addition to imposing substantial limitations on the king related to accusing and punishing criminal suspects, the Constitution also contains a relatively detailed description of the power of the courts and their duties in criminal matters. Thus, only courts may try criminal causes; the function of courts is exclusively judicial. (Arts. 242-245). Judges are personally liable for failing to observe the law. (Art. 254). Prisoners have the right to know the crime for which they are charged and to be presented to a judge. (Arts. 287, 290). Punishment may only follow after an information of the facts, a violation of law, and judicial order. (Art. 287). Forfeitures of good are permitted only for crimes carrying a financial punishment. (Art. 294). The Constitution prohibits torture and confiscation. (Art. 303, 304). Searches must be conducted under law and only for the good order and security of the state. (Art. 306). Furthermore, the Constitution contemplates one criminal code of universal application throughout the nation. (Art. 258). Thus, the Constitution of Cádiz expresses the Legality Principle and ancillary aspects in several important provisions.

This study analyses the origin of these and related provisions in the Constitution. It examines the debates of deputies in the sessions of the Cortes, explanatory works regarding the Constitution such as the Discurso Preliminar, and the writings of deputies to reconstruct the debate over the place of these provisions in the Constitution and the nation. Such provisions not only were the product of newer, liberal thought but also were grounded in and justified by the established practice of centuries of Spanish law. They accordingly provide a fascinating example of the deputies in Cádiz asserting the legitimacy of constitutional texts through political arguments that employed claims of both innovation and historicity.
Codification and the Constitution of Cádiz will appear in ESTUDIOS JURÍDICOS EN HOMENAJE AL PROFESOR ALEJANDRO GUZMÁN BRITO, Patricio-Ignacio Carvajal and Massimo Miglietta, eds., Edizioni dell’Orso, 2012.  Here's the abstract:
This study seeks to explore the private law side of the Constitution of Cádiz, in particular its use and reference to the legal revolution of codification that was well underway by 1812. By engaging questions of codification and private law, this study explores the relationship between private law and public law at a transformative moment in both areas. In public law, unwritten, ancient constitutions were just beginning to be replaced by written constitutions attempting to limit government and to define individual rights. In private law, centuries of the ius commune tradition were being reorganized and shaped into codes. Thus, an examination of the idea and place of codification in the Constitution of Cádiz should reveal clues about these important changes.

First, this study discusses the placement of Article 258, the constitutional article referring to codes, within the text of the Constitution itself. It then addresses other aspects of the Constitution that point towards codification as a logical outgrowth of the political and legal transformations contemplated by the Constitution. The third topic addressed here is the way Article 258 came into the Constitution through the reports of the debates in the Cortes and what these statements reveal about the perception of codes at the Cortes. This study ends with some concluding comments about the place of the Constitution of Cádiz in the history of Latin American codification.

No comments: