Lawyers and The Origins of Catalan Nationalism

American Society for Legal History, Inc.
Lawyers, Codification, and the Origins of Catalan Nationalism, 1881-1901

Author(s): Siobhn Harty
Source: Law and History Review, Vol. 20, No. 2 (Summer, 2002), pp. 349-384
Published by: American Society for Legal History, Inc.
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FORUM:
CATALAN NATIONALISM AND CIVIL CODIFICATION

IN NINETEENTH-CENTURY EUROPE
Lawyers, Codification, and t

of Catalan Nationalism, 188
SIOBHAN HARTY
The defense of Catalan civil law against the introduction

Civil Code in the late nineteenth century was the catalyst for
cial movement that would be transformed into Catalan nation
turn of the twentieth century. Lawyers were central to this
They interpreted and popularized the danger codification
Catalan society and they were instrumental in making the ci
tral element in the construction of Catalan national identity.
cue from the experience of other stateless nations in Europe,
veloped a principled argument for political autonomy that wa
alized with the creation, in 1901, of Catalonia's first natio
party, the Lliga Regionalista.' Between 1881 and 1901, Ca
would help found a series of social movements for the protec
lan culture and orient these movements toward the adoption
1. The most authoritative account of the Lliga Regionalista is Isidre M

lana: Un estudi d'estasiologia, 2 vols. (Barcelona: Edicions 62, 1972). For
accounts, see Borja de Riquer, Lliga Regionalista: La burgesia catalana i
(1898-1904) (Barcelona: Edicions 62, 1977); and Charles E. Ehrlich, "T
alista and the Catalan Industrial Bourgeoisie," Journal of Contemporary H
399-417.
Siobhan Harty is lecturer in Comparative European Politics in the Department of

International Politics, University of Wales, Aberystwyth. She thanks the anonymous
referees for Law and History Review for their very insightful criticisms and espe
cially Christopher Tomlins for his support and encouragement. She also acknowl-
edges the financial support of a Killam Research Grant (Killam Trusts, Canada
and the assistance of the library staff at the Il-lustre Col-legi d'Advocats de Bar-
celona. All translations are by the author unless otherwise noted.
Law and History Review Summer 2002, Vol. 20, No. 2

? 2002 by the Board of Trustees of the University of Illinois
350 Law and History Review, Summer 2002
objectives. Finally, lawyers would form the majority of the Lliga Region-
alista's electoral candidates and the core of the party's strategists, helping
the party climb to a position of dominance in Catalan politics between
1901-1932.
The history of nineteenth-century civil law codification in Europe make
clear that the drive toward legal unity implicit in codification was often su
ject to social and political compromises. Outright opposition was unlike
to be successful because of the difficulty of organizing and maintaining a
coalition of interests. Writing about the German experience of civil law codif
cation, which also took place in the late nineteenth century, Michael John
noted the failure of interest groups "to generate sufficient pressure on th
government [for reform because of] the difficulties [they] had in arriving
unity concerning important parts of the Code. The breadth and complexit
of the Code made it difficult for the interest groups to consider it in a sys
tematic way."2 Catalonia is an important variant in the history of civil law
codification in that it successfully resisted legal unity by securing the pres
ervation of its own civil law regime when the Spanish Civil Code came int
force in 1889.3 Unlike the German experience, it was possible in Catalonia
to consider the civil code in a unified and systematic way because concern
interests agreed to oppose it in its entirety. This agreement was achieved by
appealing to a form of collective identity organized around Catalonia's dis-
tinct institutions, including civil law, and making the preservation of the
institutions a group objective. In this way, there were no apparent division
within the Catalan movement that the Spanish government could exploit t
its advantage, as had happened in the German case.4 Although the term
"nation" and "nationality" had not yet been applied to Catalonia, this woul
change once the Spanish Civil Code was introduced. The victory of 1889 wa
conditional on fulfilling certain requirements set by Madrid. Therefore, t
defenders of Catalan civil law could only pause at this point before return
ing to the offensive. When they did, they would be key players in the co
struction of a Catalan nationalist discourse in which civil law was presente
as one of the main elements of Catalan national identity.5
The story of Catalonia's success has niot been introduced into the gen
eral literature on civil law codification nor has there been any attempt to
relate the Catalan experience to that of other European cases. This article
2. Michael John, Politics and the Law in Late Nineteenth-Century Germany: The Origin
of the Civil Code (Oxford: Clarendon, 1989), 245.
3. Strictly speaking, Catalan civil law (along with other regional law and privileges) was
to be placed in an appendix to the civil code.
4. John, Politics and the Law in Late Nineteenth-Century Germany, 246.
5. In this article, the nation is understood as an ethnically distinct group; nationality r
fers to the status of belonging to a particular nation; and nationalism refers to a doctrine use
to mobilize people around their national identity for political purposes.
The Origins of Catalan Nationalism 351
sets out to correct this omission. Its main objective is to explain this vari-
ation by identifying the source of Catalan opposition to codification and
the strategies that were used to mobilize this opposition. I hope that by
determining why and how legal unification was resisted, the article can
make a modest contribution to defining the range of nineteenth-century
European experiences of civil law codification.
The article argues that Catalan conservatism provided the impetus to op-
pose the Spanish Civil Code and a nascent Catalan nationalism provided
the means for mobilizing against it. Conservatism here refers to a system
of social and economic relations that privileged hierarchy, corporate struc-
tures, and a household economy built on family patrimony. The Catalan
lawyers who are the protagonists in the story related here emanated from
this conservative background in rural Catalonia. They viewed this system
as the foundation for the region's celebrated industrial success, which dis-
tinguished Catalonia from Spain's largely agricultural economy, and they
shared this view with Catalan property owners, industrialists, and men with
small and medium-sized businesses. The preservation of this system depend-
ed on Catalan civil law, a body of local customs and case law that was threat-
ened by Madrid's codification project. More specifically, this system was
threatened by the code's regime of divisible property, which broke with
Catalan custom. Furthermore, Catalan legal professionals, as the gatekeepers
of this regional law, had a vested interest in maintaining it.
The use of a nascent nationalist discourse to defend Catalan civil law sets
the Catalan case in a broader European framework that was marked by divi-
sions between the Historical School of Savigny and supporters of codifica-
tion. Friedrich Carl von Savigny's work was certainly known by Catalan
lawyers and influenced their arguments against codification. But it would be
a mistake to conclude that Savigny's influence alone explained the emergence
of Catalan nationalism around the defense of civil law. Catalan lawyers also
studied and wrote about European nationalist movements and turned to these
for political solutions to their particular demands. For Catalan lawyers were
not only interested in the origins of the law but also in control over their law.
The ability to exercise this control depended on political arguments about
the relationship between state, nation, and sovereignty.
The first part of this article situates the Catalan case in a broader con-
text through a general discussion of the literature on civil law codification
and lawyers. The second part, which acts as a bridge between the general
literature and the specific case study of Catalonia, briefly discusses the
history of civil law codification in Spain and identifies the Catalan corpo-
rate structures that opposed it. The third part identifies the source of Cat-
alan opposition to codification through an examination of Catalonia's so-
cial and economic system. The fourth part examines the role of lawyers in
the rise of the Catalan nationalist movement.
I. Theory of Civil Law Codification and Lawyers
Assumptions about civil law codification fall into one of two broad cate-
gories: codification is either regarded as an integral part of an inevitable
process of rational state construction or it is studied as the outcome of a
series of compromises among social forces, legal professionals, bureaucrat-
ic administrators, and the state. According to the first view,6 the introduc-
tion of Aicivil code was an intentional act of state rationalization on the part
of rulers and served as a blueprint for social and political reform under-
taken in response to changing conceptions of order. The idea that the so-
cial order should be regulated by separate jurisdictions (royal, ecclesiasti-
cal, and feudal), each of which sought to protect its special privileges, was
rejected by an emerging positivism that affirmed general and universal
principles that could be deduced by anyone through the law of reason.
Codification also made permanent changes among those entrusted with
making law: it took lawmaking away from judges and legal scholars and
subjected it to the law of reason, which was placed in the hands of parlia-
mentarians. Again, the motive behind this change was to render the pro-
cess of lawmaking transparent, accessible, and, ultimately, democratic.
Lawmaking would no longer be the right of law professors or judges but,
rather, democratically elected representatives of the people. In this way,
laws would be enacted in response to particular social needs, but the spirit
of the law would always reflect universal principles.
Critics of this approach accept that while some state rulers and bureau-
crats viewed codification as a means to a more effective and efficient ad-
ministration, they were not the only actors interested in the outcome of this
process. Legal professionals and social forces more generally would be
affected by the legal changes implicit in codification. According to this
second view, "Law is too important a subject to be left to legal historians":
the study of the law reveals much about social relations and their institu-
tional arrangements while the study of legal change reveals social attitudes
about these relations among different groups.7 In this approach, codifica-
tion is a form of legal change that can disrupt established relations not only
in the social sphere but also between different groups and the state: inter-
est groups, legal professionals, and legal academics. So the study of codifi-
cation-or of legal change generally-can tell us something about how
6. See in particular, R. C. van Caenegem, An Historical Introduction to Private Law, trans.

D. E. L. Johnston (Cambridge: Cambridge University Press, 1992); and Alan Watson, The
Making of the Civil Law (Cambridge: Harvard University Press, 1981).
7. John Breuilly, "Civil Society and the Labour Movement, Class Relations and the Law:
A Comparison between Germany and England," in John Breuilly, Labour and Liberalism
in Nineteenth-Century Europe: Essays in Comparative History (Manchester: Manchester
University Press, 1992), 160.
different groups are forced to adjust to new legal contexts; it presumes that
legal change is important for understanding broader social, political, and
economic issues. The line of causality can also run in the opposite direc-
tion: the study of how different groups seek to protect themselves against
legal change-for social, political, or economic reasons-tells us something
about the nature of legal outcomes.
This article follows the second approach by emphasizing the importance
of studying social forces to explain the outcome of legal change and takes
its cue from the literature on the German experience of civil law codifica-
tion.8 This literature engages with the even broader scholarship on German
political development9 and therefore it examines codification with a view
to contributing to the debate on Germany's particular development path
(Sonderweg). In this sense, the literature on the German Civil Code is not
comparative nor does it attempt to draw general conclusions that can be
applied to other cases. It does raise issues that can be applied to other cases:
state formation, state-society relations, liberalism, sovereignty, and nation-
alism are only some of the themes analyzed that were important not only
for Germany but for late nineteenth-century Europe generally. But to un-
derstand how these issues were linked to civil law codification, we need
further comparative studies, which are presently missing from the litera-
ture on codification. This article seeks to help define the range of responses
to codification in Europe by asking two fundamental questions: why was
codification resisted and how was it opposed. It seeks a link between sourc-
es of opposition and forms of opposition to codification; as such, it exam-
ines the political expression of ideas.
Any study of codification must naturally explore the world of legal pro-
fessionals and legal scholars. Recent work on theprofession of lawyers has
emphasized to what extent they are political animals whose forays into the
world of politics have been motivated by "'political projects' that consti-
tute political liberalism. They have been among the builders of legal states
and society."10 In this literature, the bar association is equated with collec-
8. John, Politics and the Law in Late Nineteenth-Century Germany; and James Q. Whit-
man, The Legacy of Roman Law in the German Romantic Era: Historical Vision and Legal
Change (Princeton: Princeton University Press, 1990).
9. J. J. Sheehan, German Liberalism in the Nineteenth Century (Chicago: University of
Chicago Press, 1978); David Blackbourn and Geoff Eley, The Peculiarities of German His-
tory: Bourgeois Society and Politics in Nineteenth-Century Germany (Oxford: Oxford Uni-
versity Press, 1984); and Konrad H. Jarausch and Larry Eugene Jones, eds., In Search of a
Liberal Germany: Studies in the History of German Liberalism from 1789 to the Present
(Oxford: Berg, 1990).
10. Terence C. Halliday and Lucien Karpik, "Politics Matter: A Comparative Theory of
Lawyers in the Making of Political Liberalism," in Lawyers and the Rise of Western Politi-
cal Liberalism: Europe and North America from the Eighteenth to Twentieth Centuries, ed.
Terrence C. Halliday and Lucien Karpik (Oxford: Clarendon Press, 1997), 15.
tive action while other civil society groups are sources of political allianc-
es for lawyers. The account of Catalan lawyers developed here draws on
this model of political action but it obviously rejects its central assump-
tion about political liberalism. While Halliday and Karpik acknowledge that
"lawyers have often been reluctant to fight for the expansion of universal
suffrage" and that their "political liberalism should not be confused with
political democracy or social democracy,"" they still assume that lawyers
have a liberal core. This article challenges this assumption by arguing that
Catalan lawyers rejected liberalism.'2 To explain this characteristic of Cat-
alan lawyers, it uses scholarship that examines how lawyers control entry
into their profession. But, in addition, it assumes that lawyers were moti-
vated by more than commercial advantage.'3 In Catalonia, only those law-
yers who had been trained in local customs at the University of Barcelona
could build up a successful private practice; codification would change this
by opening up the market to graduates from other parts of Spain. But law-
yers are not only "gatekeepers," they are also custodians of ideas about
social relations, social order, and social peace. These ideas are conveyed
in law school, put into practice upon graduation, and then refined over a
lifetime of pleading, writing, debating, and discussing in the courtroom,
the bar association, and beyond. This article emphasizes the importance of
lawyers as custodians of ideas and argues that this role not only shaped their
world view but could also be the basis for political action.
II. Responses to Legal Pluralism in Spain
The origin of legal pluralism in Spain was a system of composite monar-

chy that shaped relations between Castile and other Iberian kingdoms un-
til the War of Spanish Succession (1700-1713). The significance of this
system, as Elliott notes for Spain, was that "the king was expected, and
indeed obliged, to maintain [the] distinctive identity and status" of the king-
doms and provinces of his monarchy, including the preservation of local
institutions: Aragon, Valencia, Catalonia, Sicily, Naples, and the provinc-
es of the Netherlands.'4 This system remained in place until the transfer
of the Spanish crown from the vanquished Hapsburgs to the victorious
11. Ibid., 51.

12. I refer here to substantive liberalism, not procedural liberalism.
13. Richard L. Abel and Philip S. C. Lewis, eds., Lawyers in Society, vol. 2, The Civil Law
World (Berkeley: University of California Press, 1988).
14. J. H. Elliott, "A Europe of Composite Monarchies," Past & Present 137 (November
1992): 52-53.
Bourbons after the War of Spanish Succession. While "the chief institu-
tions of Aragon, Catalonia, Valencia, Majorca, and the Basque provinces,
political, administrative, and of civil law, still subsisted substantially in-
tact"15 at the end of the war, this situation quickly changed as the eighteenth
century progressed. However, the extent and degree to which the Bourbon
crown abolished local institutions varied greatly. Aragon and Valencia lost
theirfuerosl6 and their public law in 1707, but Aragon was allowed to con-
serve its special civil law. Under the Nova Planta Decree of 1716-which
spelled out the foundations of the new Bourbon regime-Catalonia lost its
regional institutions of government (the Consell de Cent and the Diputacio),
but its legal realm was left completely untouched until the beginning of the
nineteenth century, when its criminal and procedural law were replaced
with that of Castile. For all of the nineteenth century, civil and commer-
cial law "remained unaltered in their whole extent, including 'the liberties
and political rights relative to the family, property and the individual.'"17
The Basque provinces retained theirfueros well into the nineteenth centu-
ry while neighboring Navarre retained both its fueros and governing insti-
tutions. As Kamen has argued, it seems that the uneven nature of the re-
forms was a result of the monarchy's increasing need for funds for its war
chest. It introduced new institutions and abolished regional privileges where
it was certain that these changes would result in financial gain.18 Although
state centralization was the ultimate objective, the pace of reforms was
dictated by other, more immediate concerns: the balance of the interstate
system and fighting off colonial rivals in the New World.
As the nineteenth century dawned, the Bourbon monarchy faced addi-
tional challenges. The end of the ancien regime in France heralded a new
kind of threat in the form of domestic revolution. Due to its proximity to
France, Spain was vulnerable to republican propaganda, particularly in
Catalonia and the Basque Country, each of which shared a border with
France.19 But Spain as a whole fell victim, like other European states, to
the domestic consequences of the French Revolution. Beginning with the
Napoleonic invasion of the Iberian peninsula (1808) and ending with the
15. Rafael Altamira, "Spain," in Various European Authors, A General Survey of Events,
Sources, Persons and Movements in Continental Legal History (Boston: Little Brown, 1912),
677.
16. Fueros is Castilian for "regional privileges."

17. Altamira, "Spain," 679.
18. Henry Kamen, "L'abolici6 dels furs: Una mesura absolutista?" L'Avenc 200 (Febru-
ary 1996): 48-50, 67.
19. Jean-Ren6 Aymes, ed., Espana y la revoluci6n francesa (Barcelona: Critica, 1989);
Loreto Busquets, ed., Cultura hispdnica y revoluci6n francesa (Rome: Bulzoni Editore,
1990); and Enric Riera i Fortiana, Els afrancesats a Catalunya (Barcelona: Curial, 1994).
loss of Spain's last colonial holdings in the Spanish-American War (1898),

nineteenth-century Spanish history was marked by a series of civil wars,
radical regime changes, and the liberation of its New World empire. The
challenge of consolidating state authority in the wake of the French Rev-
olution was not unique to Spain, nor was one of the main strategies de-
ployed by both the crown and a succession of governments to confront this
challenge-legal unification. By the end of the nineteenth century, most
areas of the law had been codified: criminal law (1822; revised 1870);
commercial law (1829; revised 1885); civil procedure (1881); criminal
procedure (1882); and military criminal law (1890).20 The notable excep-
tion was civil law.
The first attempt to introduce a civil code in Spain was the liberal Consti-
tution of Cadiz (1812), drawn up by the king's faithful during the Napole-
onic occupation of the peninsula: "a single civil code should be in force for
all the dominions of the Spanish monarchy" (art. 259). But the return to
absolutism following Napoleon's retreat from Spain (1814) brought the ef-
forts of these parliamentarians to an abrupt stop. As Spanish absolutism was
slowly liberalized over the nineteenth century, new efforts at unification were
attempted but new sources of opposition also emerged. The biggest stum-
bling block to the unification of civil law came from the foral regions-those
that continued to enjoy legal privileges in this sphere. Ironically, thanks to
the crown's liberalization of the professions beginning in the 1830s, the foral
regions acquired a corporate structure that could organize and coordinate
opposition to civil law unification: the Colegio de Abogados.
In 1833, the Col.legi d'Advocats de Barcelona was founded as a corpo-
ration for the regulation of legal professionals and similar associations were
founded in the rest of Catalonia around the same time.21 Anyone in pos-
session of a licenciado en derecho, a qualification granted after success-
fully completing a university course in law, could become a member of a
Colegio de Abogados, although only practicing lawyers had the right to
refer to themselves as abogados (Catalan: advocat).22 In Catalonia, licen-
ciados would have trained in Castilian in the faculty of law at the Univer-
sity of Barcelona,23 specializing in either civil, canon, or administrative law
20. See the discussion in Thomas W. Palmer, Jr., Guide to the Law and Legal Literature
of Spain (Washington, D.C.: Government Printing Office, 1915).
21. For a history of this corporation, see Enric Jardi, Historia del Col legi d'Advocats de
Barcelona, 2 vols. (Barcelona: Col-legi d'Advocats, 1989).
22. An advocat is responsible for the legal defense of parties and litigates in the courts in
the district of his/her Colegio.
23. Until the 1960s, the University of Barcelona was the only Catalan university offering
a degree in law. Castilian was imposed on the University of Barcelona from the late eigh-
teenth century. On the complicated history of language use in nineteenth-century Catalo-
nia, see Pere Anguera, El catala al segle XIX: De llengua del poble a llengua nacional (Bar-
celona: Empuries, 1997).
and receiving specialized training in Catalan legal institutions. As in other

civil law countries, the Spanish university acted as a gatekeeper into the
profession and admission into a law faculty was tightly controlled and high-
ly competitive.24 Those students who made it through to graduation might
opt to pursue a career in the public sector, given the expansion of the state
bureaucracy during the Restoration period (1875-1923) and the creation
of new professional opportunities through various reforms to the justice
system.25 In these cases, a law graduate would have to pass a state exam-
ination to become either an abogado del estado;26 a judge; a civil servant;
or a notary.27
Spanish law graduates who opted to enter the private sphere did not have
to pass a professional examination nor undergo a period of apprenticeship
in order to become an advocat.28 A new advocat would set up his practice
(bufete), possibly sharing the premises with other lawyers but running his
business independently. The large firm (despacho colectivo) was not per-
mitted and is still highly regulated today. In practice, Catalan advocats
continued to receive training through the many services offered by the
Col.legi d'Advocats.29 These were supplemented in 1840 through the es-
tablishment of the Academia de Jurisprudencia i Legislacio in response to
a Royal Order allowing for the creation of such institutions as part of a
larger effort to establish academies in all major fields and disciplines. Bar-
24. Richard L. Abel, "Lawyers in the Civil Law World," in Lawyers in Society, 1-53.
25. For example, a much-needed penal reform was accompanied by the emergence of
criminology as a field of study and practice while reforms of the judicial system in 1882
and 1892 resulted in new criminal tribunals at the provincial level. See Stephen Jacobson
and Javier Moreno Luz6n, "The Political System of the Restoration, 1875-1914: Political
and Social Elites," in Spanish History since 1808, ed. Jos6 Alvarez Junco and Adrian Shu-
bert (London: Arnold, 2000), 106.
26. The abogado del estado is responsible for representing the state in legal proceedings.
27. Since the nineteenth century, notaries have been regulated by both the Ministry of
Justice and their own professional corporation, the Colegio de Notarios (Catalan: Col.legi
de Notaris). The state controls the number of practicing notaries (there are presently 367
notaries in Catalonia) and openings are scarce. In 1862, Madrid enacted the Ley de Notar-
iado (Law of Notaries), article 25 of which stated that all public instruments would be writ-
ten in Castilian. Still today, notaries come under Spanish jurisdiction so that those working
in Catalonia produce documents in Castilian.
28. However, those graduates who became procuradors did have to take a state examina-
tion and were regulated through their own Colegio de Procuradores (Catalan: Col-legi de
Procuradors). A procurador is an official representative who, through a power of attorney
(poder suficiente), represents parties in courts and other official departments. The interven-
tion of a procurador is compulsory in most civil law cases and all criminal law cases.
29. Membership lists for the Col-legi d'Advocats were published annually as the Gufa
Judicial de Catalufia, Listas oficiales de los colegios de abogados, procuradores y escrib-
anos. The number of members was fairly consistent for the period under investigation: ap-
proximately one thousand. The ratio of practicing to nonpracticing lawyers did vary, but in
any one year there was a majority of the former.
celona's Academia de Jurisprudencia i Legislacio was created to discuss

important questions of jurisprudence and legislation as well as to provide
training for its members in six areas of the law.30 Members of the Col.legi
were admitted through a two-tiered system: (1) nomination by three mem-
bers of the Academia and (2) approval by a majority of members through
a secret vote in a general meeting. Membership was not exclusive to law-
yers. Anyone who had distinguished himself in the field of juridical sci-
ences could become a member if nominated by five existing members and
approved by two-thirds of members attending a general meeting. In this
way, the Academia acted as a meeting place and forum for the exchange
of ideas among a cross-section of legal professionals and legal experts.31
The calendar of its activities coincided with the academic year (October-
May) and included a series of ordinary sessions, lectures, and short cours-
es on legal issues organized around a specific theme, all crowned by an
annual address (sessio inaugural) by its president.
The first twenty years in the life of the Academia were characterized
by "a sorry state of inaction"32 that was addressed through the introduc-
tion of an annual prize, beginning in 1858, for the best study of Catalo-
nia's distinct legal institutions. Although the prize doubtless helped to
stimulate the intellectual output of the Academia, two other factors were
also essential. First was the Spanish government's establishment of a
Comision General de Codificaci6n in 1843, which included a section on
civil law that was mandated to produce a draft civil code based on Castil-
ian law. A draft bill made public in 1851 was rejected by the foral regions,
including Catalonia, but sparked interest in larger debates about the im-
plications of codification. Second, beginning in the late 1850s there was
a general flourishing of Catalan culture that focused the attention of law-
yers on Catalonia's distinct legal institutions. The idea that Catalan cul-
ture and Catalan law might be linked gained ground through the influence
of followers of Savigny's Historical School. In 1858, for the first time,
the Academia discussed the implications of a Spanish Civil Code for
Catalonia's civil law institutions and later, in 1869, it supported the es-
tablishment of the Fundaci6 Savigny in Spain to defend the Historical
School of Law against the creation of a civil code based on Castilian law.
In response to these developments, most of the Academia's lectures and
30. These were civil legislation; criminal legislation; organization of civil and criminal
judgments; public legislation; legal statistics; and canon law.
31. There were 158 members of the Academia in 1896. See Laurea Pagarolas i Sabate,
Hist6ria de l'Academia de Jurisprudencia i Legislaci6 de Catalunya (Barcelona: Academia
de Jurisprudencia i Legislaci6 de Catalunya, 2000), 104.
32. Ramon Marti i d'Eixala, president of the Academia (1848-1857) in Pagarolas i Sa-
bat6, Historia de l'Academia, 46.
courses between 1858-1860 were devoted to an examination of the codifi-

cation of civil law.33
The efforts of the Academia's governing board to concentrate its mem-
bers' attention on the question of civil law codification were to be put to
good use during the 1880s, when the Spanish government made several
more attempts to introduce a civil code, finally succeeding in 1889. Dur-
ing this period, Madrid determined to gain the support of regional inter-
ests by granting them certain concessions. The first of these was to include
regional representatives on the civil law section of the Comision General
de Codificacion who would be responsible for producing a report on "the
principal institutions of foral law which, due to their vital importance, it
would be indispensable to identify as exceptions to the general Code."34
The Catalan representative was Manuel Duran i Bas, nineteenth-century
Catalonia's most prominent and respected jurist, whose published report
became a standard reference on Catalan civil law.35 The second concession
was to incorporate these distinct institutions into the civil code by means
of an appendix, which would have legal force in each region.
Both of these concessions opened the door to the state-sanctioned par-
ticipation of Catalonia's legal corporations in the codification process and
initiated an intense period of lectures, seminars, committee work, and re-
ports. The first two were intended to sharpen members' positions on codifi-
cation, while the committees were appointed to produce reports on various
aspects of the draft civil code, on Catalan legal institutions, and, after 1889,
on the effects of the code on Catalan jurisprudence.36 When the first com-
33. Pagarolas i Sabat6, Historia de l'Academia, 47-50, 56. There is no historical record
to suggest that the Fundaci6 Savigny became a permanent fixture of Barcelona's legal or
cultural circles.
34. See Article 4 of the Royal Decree of the Minister of Grace and Justice, Satumino
Alvarez Bugallal (2 February 1880) in Francisco Tomas y Valiente, "Los supuestos ideol6gi-
cos del c6digo civil: El procedimiento legislativo," in Miguel Artola et al., La Espana de la
Restauraci6n: Politica, economia, legislacion y cultura, ed. Jos6 Luis Garcia Delgado
(Madrid: Siglo XXI, 1985), 381-83.
35. Manuel Duran i Bas, Memoria acerca de las instituciones del derecho civil de Cata-
lunya (Barcelona: Imp. De la Casa de Caridad, 1883). Manuel Duran i Bas occupied every
prestigious juristic post in Catalonia. He was dean of the Col-legi d'Advocats (1885-1891);
president of the Academia de Jurisprudencia i Legislaci6 (1867-1871; 1882-1883; and 1892-
1894); dean of the faculty of law and rector of the University of Barcelona; and a deputy
and a senator to the Cortes in Madrid. He also wrote the prologue to the first Castilian-lan-
guage translation of Savigny's work. He used his position as minister of justice in the Con-
servative government of Francisco Silvela (1899-1901) to lobby for the preservation of
Catalan civil law. See Borja de Riquer, "Manuel Duran i Bas i el conservadorisme catala
sobre la Restoraci6," in El pensament politic catala del segle XVIII a mitjan segle XX, ed.
Albert Balcells (Barcelona: Edicions 62, 1988).
36. Five reports were issued between 1881 and 1895 and are referred to in Part 3. For a bibli-
ography of the Academia's output, see Pagarolas i Sabat6, Histbria de l'Academia, 291-92.
mittee met in 1880 to identify the Catalan legal institutions that needed to
be placed in the proposed appendix, it became evident that opinion was very
much divided over whether to cooperate with the government or reject the
entire codification project. Those who supported cooperation argued that if
codification came to pass, it was best to be prepared; those who advocated
opposition maintained that it was pointless to "indicate which institutions
needed to be protected, because they all had to be preserved for the good
and prosperity" of Catalonia.37 The debate came to a head in February 1881
at the Congres catala de juriconsultes, a meeting of all the Col-legi
d'Advocats of Catalonia, where "the decision to oppose the unification of
civil law and to make this known to the government triumphed, but not
before debates which were tempestuous at times."38 Some lawyers clearly
supported codification. They might have been state centralists who favored
legal unity on rational grounds or Spanish republicans who supported the
liberalizing features of the civil code. But the majority of Catalan lawyers
attending the Congress, including the seventeen delegates from the Col.legi
d'Advocats of Barcelona, opposed codification on three grounds: first, codifi-
cation would threaten their role as exclusive gatekeepers of Catalan civil law;
second, codification would endanger the continued existence of Catalan legal
institutions; and third, codification would put at risk the foundations of Cat-
alonia's economic prosperity. The decision taken at the congress to oppose
codification in its entirety is crucial for explaining the subsequent course
of Catalan lawyers' political action. But an examination of lawyers' strate-
gies needs to be prefaced by a more detailed discussion of the sources of
their opposition to the Spanish Civil Code.
III. Catalan Opposition to the Spanish Civil Code
Catalan opposition to the Spanish Civil Code was rooted in a conservative

view of society, one in which social order was maintained by structured
household relations that dictated one's place and purpose. Hierarchical
relations within the household ensured that members complied with the
rules and regulations for its operation while Catalan civil law spelled out
the terms of the rules themselves. Social norms provided an additional
reason for respecting local customs, as the household was the foundation
37. Ibid., 79. Statement made by Joan Permanyer i Ayats, while a member of a special
committee set up by the Academia in 1880 to prepare its position on the draft civil code. He
would later be president of the Academia between 1895-1897.
38. Antoni Rovira i Virgili, Resum d'historia del catalanisme (Barcelona: Barcino, 1936),
quoted in Josep M. Mas i Solench, El dret civil dels Catalans (Barcelona: Generalitat de
Catalunya, Departament de Justicia, 1985), 37.
of a family's standing in its community. More precisely, household wealth

was an indicator of a family's prestige and status and a determinant of its
social and political influence. Maintaining family wealth was the most
important objective of the household, not only for reasons of social pres-
tige but also to be able to protect the future well-being of all of its mem-
bers. This goal was not specific to a certain class; peasant and industrial
families alike pursued it.39 The importance of patrimony was such that the
alienation or division of property was regarded as a moral and material
amputation of the family community by which "were lost a part of the ter-
ritory, a slice of the life, the history and the labor of [one's] ancestors. This
is the fear of selling."40 Similarly, contracting a loan was regarded as a form
of indenture for the entire family and possibly for future generations: "He
who owes, lives hanging on a cross" ("Qui deu, viu penjat en creu"). The
goal was to use one's property as capital for making money but to strive
to keep family patrimony protected for future generations.41
The Universal Heir
In Catalonia's dominant household structure, the patrilocal stem family,42

wealth maintenance was achieved through an intergenerational system of
property transfer centered on a universal heir. In rural Catalonia, the home
base of the stem family was the casa pairal, a co-residential household that
was the "center of rural life" because it "symbolized the strong links be-
tween the head of the family, the universal heir, his wife and children, and
his brothers, who in many cases lived far away but used the stem family
as a source of economic and personal assistance."43 Stem families not only
lived together, they worked together; the casa pairal was not only a co-
39. Llorenc Ferrer, "L'is de la farmlia per la burgesia de la Catalunya central," in Familia
i canvi social a la Catalunya contemporania, ed. Santi Ponce and Llorenc Ferrer (Vic: EUMO
Editorial, 1994), 15.
40. M. Casals Colldecarra, El pacto de retro y la carta de gracia (Barcelona: Bosch, 1943),
51.
41. Families in need of additional revenue resorted to certain long-term leaseholding ar-
rangements, such as emfiteusi or rabassa morta, or land sales in which the owner retained
some form of domain, such as compraventa a carta de gracia or retroventa. See Casals
Colldecarra, El pacto de retro y la carta de gracia.
42. Angels Torrents, "Marriage Strategies in Catalonia from the Seventeenth to the Nine-
teenth Century: A Case Study," Continuity and Change 13 (1998): 475-96. The stem (or
troncal in Castilian) family consisted in the head of the household and his wife; the hereu
(universal heir; usually the firstborn son); his wife and children; and the siblings of the hereu,
who were permitted to live at home until they were married. See also David S. Reher, La
familia en Espana: Pasado y presente (Madrid: Alianza Universidad, 1996).
43. Reher, La familia en Espana, 85-86.
residential household, it was also a co-economic one. The presence of mul-

tiple generations organized as a type of community was a reminder that fam-
ily patrimony was to be perpetuated over time; each generation had the moral
duty to pass on family patrimony to the next generation, with which it re-
sided and worked. The perpetuation of family patrimony was just as impor-
tant a tenet for social and economic life in urban Catalonia as it was in the
rural world. Indeed, the casa pairal provided the obvious model for struc-
turing family life in Barcelona and other cities; its urban equivalent was the
casa industrial, which, like its rural counterpart, was a co-residential and co-
productive household. Although in the casa industrial father-son relations
at home were reproduced as owner-manager relations at the firm, the pur-
pose was the same: "The permanence of the casa industrial is achieved by
the same process as the permanence of the family. The heir, continuator of
the personality of the father, is the link that unites the family which started
[the work] with the one which finishes it; the heir... is he who connects,
within the casa industrial, today's existence with that of yesterday."44
For Catalonia's elite sectors, the region's economic prosperity was directly
linked to the universal heir for two reasons: first, undivided property pro-
vided the capital to fund industrial and commercial enterprises; and, sec-
ond, the perpetuation of family wealth over generations provided needed
stability for the firm. Moreover, the institution of the universal heir, it was
argued, had given Catalonia a distinct advantage over the rest of Spain in
the area of industry and the proof was to be found in its comparatively higher
level of economic development and standard of living. Its supporters claimed
that the rest of Spain was disadvantaged by a system of divisible property,
which made it impossible to consolidate wealth.45 Whereas the Catalan head
of family had the freedom to dispose of almost all of his property, that of
his Castilian counterpart was more limited: one-fifth before the Civil Code
of 1889 and one-third following its introduction. The remainder of the prop-
erty, known as the legitima, was to be divided into three equal parts: two of
these were bequeathed to the testator's legal descendants in equal parts while
the third part could be left to anyone or used to increase (mejorar) the in-
heritance received by any one heir. If someone died intestate, his property
was divided equally among all his legal descendants.
Catalan succession law was distinguished from Castilian law on two
44. Enric Prat de la Riba, Ley juridica de la industria: Estudio defilosofiajuridica seguido
de bases para laformaci6n de un c6digo industrial, in Obra completa, vol. 2, 1898-1905,
ed. Albert Balcells and Josep Maria Ainaud de Lasarte (Barcelona: Proa and IEC, 1998),
128. For an extensive analysis of Barcelona's industrial class and its social background, see
Gary Wray McDonogh, Good Families of Barcelona: A Social History of Power in the In-
dustrial Era (Princeton: Princeton University Press, 1986).
45. Prat de la Riba, Ley juridica de la industria, 129.
counts: first, the amount of property that could be freely disposed of was
75 percent, compared to 20-33 percent in the rest of Spain; and second,
there was no mejora. A designated universal heir (male, hereu; female,
pubilla) received 75 percent of family property and the remaining 25 per-
cent was divided among all other legatees, including the universal heir.46
Legally, there was only one heir; the remaining children were beneficia-
ries of the estate and had no right to contest the amount they received. The
universal heir had a legal duty to preserve-and hopefully increase the
value of-the family's patrimony for the next four generations. The hereu
or pubilla essentially held family property in trust (fideicomis) and enjoyed
a usufruct on it until he or she died.47 The universal heir did not inherit
individual title to the property but, rather, was entrusted to manage it over
his or her lifetime: "The death of the father is an important event, but it
only results in a substitution in the post of family director or manager and
is not fundamentally a question of the transfer of property."48 Indeed, the
hereu or pubilla assumed all of his or her father's legal duties and func-
tions; in this way they were considered to represent the continuation of their
father's legal person and the durability and persistence of the family. There
was to be no interruption in the social and economic existence of the fam-
ily, just a smooth transition from one generation to the next that kept the
larger social order intact.49
The legal instrument in which a universal heir was designated was not
the will, as in most of the rest of Spain, but the marriage contract (capitol
matrimonial). These contracts not only established a separation of proper-
ty between husband and wife-compared to a regime of communal goods
in the rest of Spain-they also effectively "promulgated the law that would
rule relations within the family that was thereby created, for the entire life
of those signing the contract and even beyond their lives."50 Catalan mar-
riage contracts were characterized as pacts inter vivos, something that
Roman law-on which most of Catalan civil law was based-did not al-
46. Joan Maluquer i Viladot, Les caracteristiques del dret catala i el seu valor social
(Barcelona: La Casa de la Caritat, 1933), 45.
47. Casals Colldecarra, El pacto de retro y la carta de gracia, 50; Maluquer i Viladot, Les
caracteristiques del dret catala, 43.
48. Ram6n Maria Roca Sastre, "La necesidad de diferenciar lo rural y lo urbano en el
derecho sucesorio," Anales Academia Matritense del Notariado 1 (1945): 338.
49. Academia de Jurisprudencia i Legislaci6 de Barcelona (hereafter AJLB), Memoria
formulado por la comision nombrado en sesidn de 31 de Mayo de 1889 acerca de las insti-
tuciones juridicas de Cataluna que conviene conservar en el apendice al cddigo civil y
aprobado por la academia en sesion de 28 de Agosto de 1899 (Barcelona, 1899), 41. See
also Maluquer i Viladot, Les caracteristiques del dret catala, 19.
50. AJLB, Memoria formulado, 13.
low. In Roman law, most inheritances were made mortis causa; only dow-
ries were made inter vivos. However, in Catalonia all inheritances were
established at the time of marriage in the form of a pact between the two
contracting families, a type of "inheritance mortis causa by way of a pact,"51
according to the Academia. Marriage contracts were used to designate a
universal heir and to determine the amounts (heretaments) to be given for
dowries, to sons who married, to the widow, and to the legatees. These
contracts almost always established a trust, thereby effectively guarantee-
ing that family patrimony would be preserved for future generations and,
as such, were the principal legal instrument through which Catalonia's
social system was perpetuated.52
The Spanish Civil Code and the Threat of Divisible Property
During the 1880s, the legal opinion of Catalan lawyers, acting through the
Col.legi d'Advocats and the Academia de Jurisprudencia i Legislacio, was
that the various drafts of the Spanish Civil Code threatened the pivotal role
of the universal heir in Catalan civil law. Their first source of apprehen-
sion was Article 17 of the 1881 bill for the Spanish Civil Code, which stated
that once the code entered into force, Roman codes would cease to exist
and therefore also the universal heir, as it was descended from Roman law.
In its place would be a system of divisible property, which would "cause
suffering for families and property"53 by breaking with the Catalan social
objective of preserving family wealth and status. The response of the Ac-
ademia de Jurisprudencia i Legislacio was swift: a three-person commit-
tee was formed to write an exposition of its principal concerns and to re-
quest that Article 17 be struck out of the bill. Signed and submitted to the
government by the Academia's president, Manuel Duran i Bas, and secre-
tary, Joan J. Permanyer i Ayats, the only official response to the exposi-
tion was the promise of a law of exception. When the 1881 bill failed be-
cause of foral opposition and political changes in Madrid, there was initial
relief, which was buttressed by the Spanish government's decision, with
the next draft code of May 1888, to preserve foral law in an appendix.
51. Ibid.
52. Ibid. See also Maluquer i Viladot, Les caracteristiques del dret catala, 47.
53. Exposici6n que la Academia de Jurisprudencia i Legislaci6n de Barcelona ha dirigi-
do al Senado sobre la necesidad de que se sigan aplicando en Cataluia a los C6digos ro-
manos y decretales en los casos en que actualmente se acude a sus textos aunque se pro-
mulgen un C6digo civil general para todo el reino, hasta que se haya sancionado y publicado
la Ley de excepci6n prescrita en el pdrrafo 1 de la Base 17 del Proyecto de Ley del Ecmo.
Sr. Ministro de Gracia y Justicia de 21 de octubre de 1881 (Barcelona: Imprenta Barcelonesa,
1882).
Article 5 of this bill stated that provinces and territories having foral law
would preserve it integrally for the time being and that the code would act
as supplementary law. Although the temporal ambiguity of Article 5 was
a cause for concern, a careful reading on the part of the Academia of the
actual civil code, which was promulgated by royal decree in October 1888,
created even further apprehension over the government's real intentions.
Article 15 of the code was interpreted as a direct threat to Catalonia's in-
heritance system because its application would increase over time the num-
ber of people-including Catalans-who would be subject to the statutes
of the civil code in matters of succession. According to Article 15,
The rights and duties of the family relative to the legal status, condition and
capacity of the person and the rights and duties of intestate or testate succes-
sion stated in the Code are applicable to: (1) Those people born in common
law54 provinces or territories; (2) those children of a father or mother meet-
ing the condition established in 15.1 even if the children were born in prov-
inces or territories where foral law is in force; and (3) to those persons born
in foral provinces or territories but who have become resident of a common
law province or territory.55
Therefore, if two Catalans got married in Catalonia with a capitol matri-

monial designating their universal heir (most likely their firstborn son), then
moved to a province in which the Spanish Civil Code was in force and had
a child there, the child-and any subsequent children-would come un-
der Article 15 and would expect to inherit property according to the code.
Similarly, if a Catalan man married a woman born in a province in which
the civil code was in practice and they resided in Catalonia, where they had
a child, both the child and the mother would fall under Article 15 and there-
fore the Castilian inheritance system would apply. The implication of this
article was that a child born of a Catalan parent or parents could possibly
inherit property according to Castilian succession rights and that these
rights would take precedence over the Catalan capitol matrimonial, which
designated the universal heir and specified other heretaments. Moreover,
such a child would have a legal right to an inheritance, even if he or she
was not the hereu or pubilla. The only families for which Catalan succes-
sion rights would continue to apply were those in which a child was born
in Catalonia of parents who were subject to Catalan civil law and both the
child and the parents maintained constant residence in Catalonia. Although
54. Common law here referred to those regions where the civil code applied.
55. See the discussion in Exposicidn dirigida a los Cortes en suplica de que se modifique
el articulo 15 del nuevo Codigo civil, signed by Juan Coll y Pujol and Joaquin Casades
(Barcelona: n.d.). Between 1888-1890, Coll y Pujol was the president of the Academia de
Jurisprudencia i Legislacio de Catalunya while Casades was its First Secretary.
we do not have statistics on interprovincial migration in late nineteenth-

century Spain, the Academia de Jurisprudencia i Legislacio maintained that
for reasons related to business, the facility of communications, and mar-
riages contracted between families of different provinces, it would take little
time before most Catalan families would have a member falling under the
Spanish Civil Code. Consequently, "Catalan law [was] condemned to a sure
and immediate death."56 If their predictions proved accurate, Catalan law-
yers would lose their status as the gatekeepers of local customs because
of the code's encroachment on Catalan civil law.
Catalan Industry and the Spanish Civil Code
The potential of Article 15 to expand the code's application into Catalon

also preoccupied Catalan industrialists and businessmen because of th
particular social and economic structure of the firm, which was organized
around the casa industrial. The division of family property could spell the
end of a successful family business, which would affect the social stand
ing of Barcelona's gent de be, or, "well-off." According to Harrison, "most
of the family firms of the Principality [of Catalonia] financed their own
developments out of profits."57 Moreover, the social expectation that the
hereu would increase the value of the family patrimony while he held it in
trust meant that profits would be reinvested in the casa industrial. So it was
possible for a firm to pursue growth without having to resort to commer-
cial borrowing, but only if the principle of undivided property held sway.
The legal status of the firm, however, presented certain challenges to this
principle in the context of the casa industrial that did not exist in the casa
pairal. In the latter, the younger children-thefadristern (second son) or
cabaler (younger son)-worked in the family household until they acquired
a career or got married. Among the better-off rural families, one or more
of its cabalers would be sent from the countryside to university in Barce-
lona where they would be trained for a liberal profession: architecture
engineering, law, or medicine. According to a popular Catalan saying, "e
primer fill hereu, el segon capella i el tercer advocat" ("the first son a
universal heir, the second a priest and the third a lawyer").58 The pathway
from the casa pairal into the liberal professions was regarded as an im
56. Ibid., 7.
57. Joseph Harrison, An Economic History of Modern Spain (London: Holmes and Mei
er, 1978), 71.
58. In Reher, Lafamilia en Espana, 109. In those families that could not afford universi-
ty education, at least one cabaler would be forced to enter the priesthood.
portant source of "human capital" that contributed to industrial success and

social mobility in Catalonia.59
The majority of the lawyers who would become the founding members
and leaders of the nationalist Lliga Regionalista were all cabalers of the
casa pairal: Enric Prat de la Riba,60 Ramon d'Abadal i Calder6,61 Francesc
Cambo i Batlle,62 and Jaume Carner i Romeu.63 Among those lawyers who
remained in Barcelona to launch their careers after graduation, it was not
uncommon for their sons to enter the profession themselves, particularly
since they could eventually take over their father's bufete and clients. Cer-
tainly, as the campaign to preserve Catalan civil law took off in the late
nineteenth century, some sons of lawyers chose the legal profession not as
a career but as a vocation. The case of the Barcelona-born brothers Lluis
and Ramon Duran i Ventosa is instructive in this regard. Lluis was one of
the founders and ideologues of the Lliga Regionalista who pursued his
studies in law under the influence of his father, Manuel Duran i Bas. Like
his father, young Lluis was a follower of the Historical School of Savigny,
which he popularized through newspaper articles, pamphlets, and books.64
Ramon, meanwhile, was an active member of the Col-legi d'Advocats and
especially, its Academia de Jurisprudencia i Legislacio.65
The situation was somewhat different for the cabaler from the casa in-
59. Ibid., 25. This view was popularized by one of Catalonia's most respected social his-
torians, Jaume Vicens Vives in Noticia de Catalunya (Barcelona: Destino, 1954).
60. Enric Prat de la Riba, from Castelltercol, was party leader of the Lliga Regionalista
from 1901 until his death in 1917. He was the key ideologue of the party as well as an ac-
tive member of the Col-legi d'Advocats and the Academia de Jurisprudencia i Legislaci6
de Catalunya. In 1899, he was appointed to a committee of the Academia charged with
determining which of Catalonia's civil law institutions were to be preserved in the appen-
dix to the Spanish Civil Code. He also wrote a regular column for the Academia's journal,
the Revista Juridica de Catalunya. The book that secured his place in the pantheon of Cat-
alan nationalists was La nacionalitat catalana (1906).
61. Ramon d'Abadal i Calder6, from Vic, was president of the Ateneu Barcelones (1902)
and the Academia de Jurisprudencia i Legislaci6 de Barcelona (1903-1905) and dean of
the Col-legi d'Advocats (1924-1935).
62. Francesc Camb6 i Batlle, from Verges, was a member of the Col legi d'Advocats and
a career politician from the founding of the Lliga Regionalista in 1901. He continued to
practice law even while he ran as a candidate for the party.
63. Jaume Carner i Romeu, from El Vendrell, masterminded the first election campaign
of the Lliga Regionalista in 1901. He converted to republicanism five years after the Lliga
was founded.
64. Lluis Duran i Ventosa was secretary (1897-1898) and later president (1915-1917) of
the Academia de Jurisprudencia i Legislaci6. Duran i Ventosa's importance as an ideologue
for the nationalist movement was established with his book Regionalisme i federalisme
(1905). His close friend Enric Prat de la Riba wrote the prologue.
65. Ramon Duran i Ventosa was secretary of the Academia de Jurisprudencia i Legislaci6
in 1890-1891.
dustrial. Depending on the size of the family business, it was always pos-
sible for a younger son to be employed there although he might still be sent
to university to acquire a degree in law or engineering, which would add
to the stock of expertise in the business. Over time, the contributions of
cabalers to the family business could be substantial. Moreover, through
various marriage strategies, they might bring additional capital or business
into the family firm.66 Yet, according to Catalan custom, the largest part of
these contributions would ultimately go to the hereu so that the property
of the casa industrial would remain undivided. This was problematic for
married cabalers, especially those with children, who were expected to
build up the wealth of their own households. There needed to be a way of
quantifying the contributions of the cabalers to the family business and
allotting them this amount while preventing the division of the family prop-
erty. At the same time, as with all businesses, the casa industrial had to
devise strategies to minimize its exposure to risk while taking into account
two social constraints: the social pressure of maintaining family wealth and
the social censure on borrowing capital. The possibility of responding to
these demands and constraints depended on finding the appropriate corpo-
rate form for the casa industrial.
Corporations are differentiated by two of their central features: control
and limitation of liability. McDonogh defines the former as "the extent to
which owners participate personally and directly in the management of the
company"; limitation of liability "is the degree to which an investor is
sheltered from loss in company actions."67 Given the importance of hier-
archical relations within the casa industrial and the need to protect the
family fortune from risk, Catalan industrialists favored a firm that gave
owners full control over all managerial functions and directorships while
providing some form of limited liability. But no company could satisfy both
of these preferences. The limited-liability company, which more than any
other company minimizes an investor's risk, adheres to a form of corpo-
rate management in which owners and managers are separate. The simple
or limited partnership, in which owners and managers are the same, pro-
vides little or no protection against personal fortune because all partners
share responsibility for debt. From his research on the "good families of
Barcelona" McDonogh theorizes that, as family fortunes increased, so did
the level of risk associated with maintaining partnerships. Some corporate
form was required that would minimize the risk to one's personal fortune
without inserting a distinction between owners and managers. As argued
above, this corporate form had also to address the needs of the cabalers.
66. Ferrer, "L'6s de la familia per la burgesia de la Catalunya central," 28-32.

67. McDonogh, Good Families of Barcelona, 64.
In their bid to keep the family at the center of business while protecting
its fortune for future generations, Catalans created the sociedad anonima
familiar, or close corporation. This was "defined by personal (familiar)
control achieved through the identification of owners and managers, yet ...
protected by limited liability. Thus it would retain family dominance in
conjunction with organizational innovation."68 Shareholders were limited
to those who were active in the business, thereby blurring the distinction
between owners and managers and creating a company culture where
"maintaining the identity of the shareholder is an absolute necessity."69 In
this sense, the close corporation had some of the characteristics of a part-
nership: one's business associates were chosen, which is not possible in a
publicly held limited-liability company. However, one of the disadvantag-
es of a partnership-a high risk of losing one's personal fortune-was
minimized by forming a corporation. The close corporation, then, was a
private company; its shares were not traded on the market but regulated
through social agreements within the firm. The number of shareholders
might increase through marriage-for instance, by bringing a new son-in-
law into the company-but it was just as likely that the number of share-
holders would be held constant and marriages would be exploited as op-
portunities to expand the company in a different direction.70
A Coalition of Opposition against Codification
The owners of the sociedad anonimafamiliar were all members of the same
family who regulated the transfer of wealth among themselves according
to private agreements that conformed to Catalan civil law. The strong be-
lief that family wealth was instrumental for the success of the firm was
implicit in these agreements. Article 15 posed a threat to that success
through its potential to introduce a regime of divisible property in Catalo-
nia. In response to this threat, the owners of family-owned businesses-
however big or small-added their voices to that of legal professionals in
opposing Article 15. Rural property owners, as the heads of the casa pair-
al, were obviously no less concerned about the effects of Article 15 than
their counterparts in the casa industrial. These three sectors-lawyers,
businessmen, and rural property owners-had a shared interest in oppos-
ing Article 15, a fact they would have quickly realized through their inter-
actions in Barcelona's rich associational life. Barcelonan society, particu-
68. Ibid., 65.

69. Jos6 Puig Brutau, "Algunas consideraciones sobre la llamada sociedad an6nima fa-
miliar," Revista Juridica de Cataluna 57 (1958): 572.
70. Ferrer, "L'is de la familia per la burgesia de la Catalunya central," 24-25.
larly the social circles in which these interests moved, was small.71 At the
elite level, two types of associations were most prominent: cultural and
intellectual meeting places, such as the Ateneu Barcelones72 and the So-
ciedad Economica Barcelonesa de Amigos del Pais,73 and associations for
the representation of economic interests, very broadly understood-the
Fomento del Trabajo Nacional,74 the Casino Mercantil,75 and the Institut
Agricola Catala de San Isidre.76 The pattern of membership across these
associations was remarkably uniform, a combination of business and pro-
fessional interests, including lawyers. Small businessmen formed a third
group that figured prominently in both the Sociedad Economica Barcelone-
sa de Amigos del Pais and the Fomento del Trabajo Nacional. It was in these
associations that the supporters of Catalan conservatism interacted and
reinforced their values and preferences; it is no coincidence that these three
groups would form the leadership and core support base of the Catalanist
movement and, later, of the Lliga Regionalista.
IV. Catalan Nationalism
The most effective way to build support for the preservation of Catalan ci
law was to emphasize how it was an inherent characteristic of something
that all Catalans shared: a national identity. The creation of a national
movement in Catalonia was a twenty-year process that began in 1881 with
a social movement for the defense of Catalan culture and culminated in
1901 with the founding of a nationalist political party for Catalan politi-
cal autonomy. During these twenty years there was a gradual yet steady
effort to equate Catalonia with a nation. Lawyers and civil law were con-
stant features in this long process.
At this point, we should consider the broader European context in which
71. For most of the nineteenth century, the population remained under 150,000 while that
of Catalonia as a whole grew. By 1887, two years before the Spanish Civil Code was intro-
duced, the population of Barcelona increased to 272,500 or one in seven Catalans. See Robert
Hughes, Barcelona (New York: Vintage, 1992), 337.
72. The Ateneu Barcelones continues to play a central role in Barcelona as a meeting place
for the exchange of ideas. For a general history, see Jordi Casassas Ymbert, L'Ateneu Bar-
celones: Dels seus orfgens als nostres dies (Barcelona: La Magrana, 1986).
73. The Sociedad Econ6mica Barcelonesa de Amigos del Pa(s was founded in 1882 to
lobby for protectionism and act as a forum for the exchange of economic ideas.
74. For a history of the association up to 1911, see Guillermo Graell, Historia del Traba-
jo Nacional (Barcelona: Imp. De la Viuda de Luis Tasso, 1911).
75. The Casino Mercantil was Barcelona's unofficial stock market.
76. The Institut Agricola Catala de San Isidre was made up of farmers, rural property
owners, and lawyers.
this effort was carried out. Catalonia was one instance of a phenomenon
appearing in Europe between 1870-1914: the multiplication of what Hobs-
bawm refers to as "potential 'unhistorical' nations [for which] ethnicity and
language became the central, increasingly the decisive or even the only
criteria of potential nationhood."77 Viewed from this perspective, Catalan
nationalism does not need to be explained; contextualizing it is sufficient
because, according to Hobsbawm, the emergence of nationalism in this
period was afunction of certain general social and political transformations
confronting European society.78 The problem with any functionalist account
is that it does not amount to an explanation. Since political actors are faced
with different choices, we must explain why they opt for one over anoth-
er. Similarly, interpreting the political choices of nationalist actors through
reference to their class, as Hobsbawm and others have done, is not an ex-
planation; it is a form of reductionism. While Catalan nationalism certainly
was part of a broader European development and gained inspiration from
other nationalist movements, there was nothing predetermined about Cat-
alan lawyers' decision to create and then politicize Catalan national iden-
tity. The only thing that could be called predetermined was that this na-
tionalism would be conservative.
The turn to nationalism on the part of lawyers can be explained on three
levels. First, at the most basic level, lawyers were attemptingto preserve
their status as the gatekeepers of Catalan civil law and as custodians of a
social order organized around the household. At a second level, lawyers
viewed Catalan self-government as a means to expand the ambit of their
authority through the acquisition of legislative powers, separate adminis-
trative structures, a separate court system, and the capacity to build regional
institutions. Put simply, the preservation of Catalan civil law-and its con-
comitant social system-could never be guaranteed so long as Madrid held
exclusive decision-making powers over legal developments. What more
effective way could there be to control Catalonia's development path than
for Catalans to obtain these decision-making powers for themselves? Fi-
nally, regional self-government would give Catalonia's political elites the
power to set the rules for political representation and citizen participation.
77. E. J. Hobsbawm, Nations and Nationalism since 1780: Programme, Myth, Reality, 2d
ed. (Cambridge: Canto, 1992), 102. The main reason for this development was the declin-
ing force of the principle that only large nations could be states (the threshold principle).
But as Hobsbawm notes (32) this principle was never completely abandoned, which is one
important reason why early twentieth-century minority nationalists in Europe championed
federalism as a state design.
78. Ibid, 109-10 (my emphasis). These were: the resistance of traditional groups to mo-
dernity; the emergence of nontraditional classes in urban centers; interstate migration; de-
mocratization; and moder administrative states.
The lawyers' rejection of the civil code was not only related to a rejection
of codification influenced by arguments deployed in the German context.
It was also related to the code's liberalizing features, since these challenged
the hierarchical structures that were the framework of the Catalan house-
hold and Catalan society more generally. Lawyers attempted to realize these
objectives by building a coalition of support for the defense of Catalan
institutions and constructing a new political discourse around the "nation."
Their rationale, which was certainly informed by events they witnessed in
Europe, was that only nations enjoyed rights to self-government.
The Emergence of the Catalanist Movement
Between 1880-1891, a new political vocabulary emerged in Catalonia as

a means of articulating a demand for political autonomy: Catalanisme
described the movement for Catalan autonomy while a catalanista was a
supporter of this movement. According to Llorens i Vila, Catalanism was
"a specific articulation of Catalonia's position within the Spanish state,
independent of what was going on in other [Spanish] regions."79 As a first
step in staking a claim for special rights, Catalanism focused on what made
Catalonia distinctive from Spain's ruling nation, the Castilians. This new
terminology came in response to the Spanish government's announcement
in 1880 that it was relaunching its efforts to produce a civil code. That same
year, Valenti Almirall, a lawyer who had turned to a career in politics and
journalism, launched a "Congress of Catalanists"80 from the pages of the
Diari Catala, the Catalan-language daily newspaper that he edited. Orga-
nized as a series of meetings between October and November 1880, the
congress attracted over one thousand participants and resulted in the es-
tablishment, in 1881, of the Centre Catala. The mission of the Centre
Catala was to give birth to "real Catalan politics" through the preserva-
tion of Catalan civil law, the establishment of a Catalan supreme court and
a Catalan administration, trade protectionism, and the promotion of Cata-
lan business.81 "Real Catalan politics" meant a form of political action
79. Jordi Llorens i Vila, La Uni6 Catalanista i els origens del catalanisme politic: Dels
origens a la presidencia del Dr. Marti i Julia (1891-1903) (Barcelona: Publicacions de
l'Abadia de Montserrat, 1992), 28.
80. See Jordi Galofr6, El primer congres catalanista (Barcelona: Rafael Damau, 1979);
and Josep M. Figueres, El primer congres catalanista i ValentiAlmirall (Barcelona: Gener-
alitat de Catalunya, 1985). Almirall (1840-1904), a committed republican, was of an earli-
er generation than the protagonists of the story told here, having participated in the federal-
republican revolution that produced the Sexenio Democrdtico in 1868. He founded El Estado
Cataldn, a federalist newspaper, in 1869 and the Diari Catala, the first Catalan-language
newspaper, in 1879.
81. "Programa de Catalanisme," Butlleti del Centre Catala, 12 June 1883.
devoid of internal divisions or factions, particularly class and ideology. This

could only be achieved by focusing on features common to all Catalans:
their history, language, culture, values, and civil law.
From the start, the Centre Catala' attempted to build bridges between
different sectors of Catalan society in order to build up a strong support
base for its program.82 Its most important initiative in this regard was the
Memoria en defensa de los intereses morales y materiales de Cataluna, the
outcome of a meeting organized in January 1885 at the Barcelona stock
exchange (Llotja de Barcelona). The choice of location was not acciden-
tal since the purpose of the meeting was to forge an alliance between Bar-
celona's economic elites and lawyers in order to use some "gentlemen's"
pressure to block a proposed free trade agreement with England and yet
another bill for a civil code. Speaking to the assembled crowd, the lawyer
Narcis Verdaguer i Callis83 presented a motion requesting approval for a
representation to the highest authority of the state to express collective
opposition to codification and free trade. With the motion approved, a del-
egation of twelve members of the Centre Catala traveled to Madrid in
March 1885 to present the Memoria to King Alfonso XII. Three distin-
guished members of the Col-legi d'Advocats de Barcelona helped draft and
edit the Memoria in addition to providing legal advice and funding: Josep
Pella i Forgas,84 Joaquim Almeda, and Joan Josep Permanyer.
The Memoria was the first public political statement of Catalonia's
claims against the Spanish state although these claims were not substanti-
ated in any way. A similar problem was evident in the work of the Centre
Catala's Seccio de Dret, which organized a series of public debates in 1882
to raise awareness of the need to preserve Catalan civil law. Taking the
initiative as section president and one of the founders of the Centre Cat-
ala, the lawyer Joseph Coroleu publicly identified the preservation, the
legislation, and the adjudication of Catalan civil law as among the central
goals of Catalanism. This was the first public argument that the defense of
Catalan civil law required separate legislative and judicial powers for Cat-
alonia, although the only rationale offered for this claim was that it was
82. See the statement against codification sent to the Spanish government by lawyers and
property owners: Exposici6 que envian a les Corts per impuls propri y per encarrech de molts
proprietaris de Catalunya en siplica de que's conservi al principat son dret civil especial:
D. Joseph A. Buxeres, D. Delfi Artis, D. Alvar Ma. Camin, D. Emili Sicars, D. F. Romani
y Puigdengolas, Advocats y proprietaris (1882), in Comissi6 per la Conservaci6 del Dret de
Catalunya, Traducci6 catalana de importants documents en favor de la conservaci6 del dret
civil vigent a Catalunya (Barcelona, 1886).
83. Verdaguer i Callis would later become president of the Centre Escolar Catalanista
(1887-1888) and of the Academia de Jurisprudencia i Legislacio de Barcelona (1889).
84. Pella i Forgas would later become president of the Ateneu Barcelones and of the So-
ciedad Econ6mica Barcelonesa de Amigos del Pais.
just and fitting.85 When he took the podium at the same debate, Almirall
attempted to flesh out the reasons why Catalan civil law needed to be pre-
served: "in the first place, because within Spain, we have a right to pre-
serve it; secondly, because it is a question of dignity; and in the third place,
because from our perspective, our laws are superior to the others [in
Spain]."86 Catalan claims amounted to moral arguments about racial supe-
riority-a tactic that was not unique in the late nineteenth century. In much
proto-nationalist discourse of this period, racial distinctions were drawn
between people sharing the same skin color and others in order to develop
an argument about different characters. The major flaw in this approach was
that there was no further political argument upon which to hang racial dis-
tinctions. Such distinctions, however obvious, did not trigger an automat-
ic right to sovereign statehood.
In the mid-1880s, Catalanism amounted to a series of statements that
required some compelling arguments before they could be transformed into
valid political claims. The first attempt to provide these was the publica-
tion in 1886 of Valenti Almirall's Lo catalanisme.87 As a republican, Alm-
irall was concerned with the oppression of all "peoples" with different
characteristics from those of the ruling nation, not just Catalans. His solu-
tion was to reconstruct Spain as a composite state using the principle of
what he termed "particularism": "affection, caring [and] preference for all
that which is particular," or, that which is part of one's local environment
or immediate surroundings.88
Almirall had dedicated Lo catalanisme to the youth movement within
the Centre Catala and hoped that the book would suggest a curriculum for
the study of Catalan politics. He never realized how seriously the Catalanist
youth movement would take him at his word. In October 1886, a group of
university students and recent graduates met to found the Centre Escolar
Catalanista,89 which quickly became the training ground for the future
leaders of the nationalist Lliga Regionalista: Narcis Verdaguer i Callis,
Enric Prat de la Riba, Lluis Duran i Ventosa, Francesc Camb6, and Joseph
85. The debate took place on 13 Dec. 1882 and is reproduced in Maria Carm6 Illa i Mun-
ne, El segon congres catalanista: Un congrks inacabat (1883-1983) (Barcelona: General-
itat de Catalunya, Departament Adjunt a la Presidencia, 1983), 31-33.
86. Ibid., 33.
87. Valenti Almirall, Lo catalanisme (Barcelona: Llibreria Verdaguer i Llibreria L6pez,
1886; repr., Les millors obres de la literatura catalana, 22, Barcelona: Edicions 62 and "la
Caixa," 1994).
88. Ibid., 102 (page references are to reprint edition).
89. The Centre Escolar Catalanista was organized into five sections: (1) law, philosophy,
and literature; (2) medicine; (3) science and pharmacy; (4) special subjects; (5) fine arts.
Although there are no membership records, it was reported that in 1887 there were eighty-
five lawyers or law students in the organization. See Molas, Lliga Catalana, 21, n. 28.
Puig i Cadafalch.90 According to these young Catalanists, Almirall had not

gone far enough in Lo catalanisme. He continued to refer to Spain as the
"nation" and, although he wrote about Catalonia, he was in fact striving for
a doctrine that would recognize Catalonia's right to self-government with-
out prejudicing that of other regions in Spain. They challenged Almirall's
refusal to recognize that Catalonia was a nation and that as a nation it en-
joyed more rights than a region-there were many regions in Spain, but only
a few nations. Their dispute precipitated the departure of the Centre Esco-
lar Catalanista from the Centre Catala, taking with it writers from the in-
fluential cultural review La Renaixensa as well as a handful of industrial-
ists, professionals, and intellectuals. Reorganizing themselves as the Lliga
de Catalunya (but still retaining the Centre Escolar Catalanista) in 1887
they committed themselves to protecting the Catalan language, civil law, and
trade through an active propaganda campaign to promote Catalonia.
The field of our [Lliga] action is Catalonia ... We will ... give all possible
assistance to Valencia, Aragon, Navarra and even to those Castilians work-
ing for the benefit of their own regions, but our first priority is to work for
ourselves [casa nostra] and we'll look to teaching those other regions more
by example than by words.91
But like the Centre Catala, the Lliga was confronted with the problem of
devising a principled argument and could only repeat its predecessor's strat-
egy of sending a message to the monarch, although at least this time it was
written in Catalan.92
The Lliga de Catalunya took its name from the Irish Land League and
its members were sufficiently inspired by the Home Rule Bill of 1886 to
consider taking the parliamentary route to political autonomy themselves.
However, they quickly changed tactics when the Spanish government pro-
duced a draft civil code in May 1888. From then on, the core of the Lliga
de Catalunya's political action was "centered on the fight for the preser-
vation of Catalan civil law."93 Both the Lliga de Catalunya and the Centre
Escolar Catalanista worked with Catalan legal corporations to concentrate
on repealing Article 15 (on succession rights) in order to preserve Catalo-
nia's universal heir. Narcis Verdaguer i Callis, who had moved from the
presidency of the Centre Escolar Catalanista to the secretariat of the Lli-
90. Josep Puig i Cadafalch was one of two architects (the other was Lluis Domenech i
Muntaner) who would be among the original leaders of the Lliga Regionalista.
91. Pau Sans i Guitart, president of the Lliga de Catalunya, in a speech made at the orga-
nization's inaugural session (5 Nov. 1887) and published as "Discurs inaugural de la Lliga
de Catalunya," La Renaixensa, 6 Nov. 1887.
92. See "Missatge a la Reyna Regent," La Renaixensa, 3 June 1888.
93. Molas, Lliga Catalana, 25.
ga de Catalunya in 1889, organized a public campaign against Article 15

between February and June of that same year, which was closely coordi-
nated with the efforts of the Academia de Jurisprudencia i Legislacio de
Barcelona. A public manifesto was issued in March 1889 calling on all
Catalanist organizations to declare their opposition to the application of
Article 15 to Catalonia. Both the Col.legi d'Advocats and the Academia de
Jurisprudencia i Legislacio added their signatures to the Lliga's petition,
as did Catalanist associations across the region. The pressure on the gov-
ernment in Madrid forced the minister of justice to resign and prompted
the Queen Regent to intervene and ask three Catalan lawyers-Manuel
Duran i Bas, Josep Vilaseca i Mogas, and Joan Maluquer i Viladot-to draft
a new version of Article 15, one that would be acceptable to Catalans.94
The new code finally came into force in July 1889.
From Catalanism to Nationalism
The defeat of Article 15 was, as Verdaguer i Callis famously proclaime

"Catalanism's first victory."95 The efforts of the Lliga de Catalunya ha
demonstrated the capacity for coordinated political action across different
sectors and different parts of Catalonia. Verdaguer i Callis sought to cap-
italize on this success by creating a coordinated union of Catalanist asso
ciations to work for Catalan political autonomy. Like other prominent law
yers, Verdaguer i Callis was aware that the defeat of Article 15 did no
guarantee the preservation of Catalan civil law. Who was to compile th
appendix to the civil code and how long it would be in force had yet to be
determined. As a response to this challenge, he laid the groundwork for th
emergence of the Unio Catalanista in 1891, which, in addition to the Ll
ga de Catalunya and the Centre Escolar Catalanista, included Catalani
associations from outside Barcelona and the main economic and cultural
interest groups from within Barcelona: the Fomento del Trabajo Nacional,
the Institut Agricola Catala de San Isidre, the Lliga de Defensa Industrial
i Comercial,96 the Ateneu Barcelones, and the Sociedad Economica Bar-
celonesa de Amigos del Pais.
The importance of the Unio Catalanista was that it served as a bridge
between the Centre Escolar Catalanista and the future Lliga Regionalista
by giving the university students who had come of age in the former a
chance to cut their political teeth in more public roles. At the same time,
94. Pagarolas i Sabate, Histbria de l'Academia, 85.

95. Ibid.
96. Lliga de Defensa Industrial i Comercial was an organization of small business and
shop keepers.
these new university graduates were entering the ranks of the liberal pro-
fessionals, which ensured the presence of important members of the Cat-
alanist movement within professional associations, such as the Col-legi
d'Advocats, and gave them a platform from which to influence Catalan
public opinion. During the 1890s, they had their first opportunity to find a
political expression for the many claims to cultural preservation that had
been articulated during the 1880s. They deliberately steered their colleagues
and peers toward a nationalist discourse in an attempt to produce a princi-
pled argument for Catalan political autonomy. They were inspired in this
regard by international events in the late nineteenth century, which became
a key reference point for the emerging nationalist discourse. Three mod-
els in particular captured the attention and imagination of the young Cat-
alanists: Ireland, Hungary, and Bohemia.97 They reported on the fate of
these nations constantly in Catalan-language newspapers, which became
the principal vehicle for transporting this new discourse to the Catalan
public. After 1888, the newspaper La Renaixensa,98 the mouthpiece of the
Lliga de Catalaunya, began using the term "nationalism" to refer to those
political movements for the vindication of peoples living under a regime
of force: Catalonia, Crete, Ireland, Bohemia, and Poland. In order to draw
parallels between these cases and Catalonia, the young lawyer Francesc
Camb6, in his capacity as a special editor of the new weekly La Veu de
Catalunya (1890), reported on minority nationalities in the rest of Europe.
Altogether, these journalistic efforts demonstrated that Catalonia was part
of a broader European movement for the political autonomy of oppressed
nations.99 According to Llorens i Vila, this "new [nationalist] vocabulary
appeared with regularity, with an ever increasing frequency and across
different journalistic media so that readers of the Catalanist press became
sensitized to a new terminology of a decidedly nationalist character."100
The objective of this period, as Prat de la Riba later explained, was to
"destroy peoples' concerns [and] prejudices.... [W]ith calculated oppor-
tunism, we insinuated in a logical fashion the new doctrines [of national-
ism], mixing together the rights of regions, nationalities and patria in or-
der to slowly accustom the readers."101 To create publicly an association
97. Llorens i Vila, La Uni6 Catalanista, 236-46.

98. Among its writers during the 1890s figured some of the members of the Centre Esco-
lar Catalanista and future leaders of the Lliga Regionalista: Lluis Duran i Ventosa, Enric
Prat de la Riba, and Josep Puig i Cadalfach.
99. Joan B. Culla i Clara, "De Budapest a Dublin passant per Cristiania: O sobre alguns
models interacionals del catalanisme," Revista de Catalunya 2 (Nov. 1986): 37.
100. Llorens i Vila, La Unio Catalanista, 182.
101. Enric Prat de la Riba, La nacionalitat catalana, 2d ed. (Barcelona: "La Cataluia,"
1910; repr., Les millors obres de la literatura catalana, 5, Barcelona: Edicions 62 and "la
Caixa," 1978), 57 (page references are to reprint edition).
between Catalonia and the nation could land one into trouble with the au-
thorities-as Prat de la Riba discovered when one of his nationalist works
was banned. Therefore, the strategy of the members of the Centre Escolar
Catalanista was cautious. They began by questioning the appropriateness
of existing terminology used to identify local cultures, terms such as "re-
gion," whose meaning was purely administrative. They then slowly intro-
duced the term "nation" as a synonym for "region" by highlighting the
cultural characteristics that distinguished one region in Spain from anoth-
er.'02 Eventually, they abandoned the term "region" and used "nation" ex-
clusively when referring to any culture that possessed crucial characteris-
tics, which they identified as history, language, law, and art.103 Enric Prat
de la Riba drew the distinction between the two in a speech in 1890: "To-
day, many are those who see clearly that Spain is not a nation, but a State,
and who grasp the difference between the State, man's creation, an artifi-
cial entity, and the Nation, a natural entity, a product of the spontaneous
nature of the development of history."'04 In 1897, during a series of lec-
tures delivered to the Ateneu Barcelones by members of the Centre Esco-
lar Catalanista, the new nationalist terminology was finally introduced to
Barcelona's cultural and intellectual elites. In the closing lecture ("Elfet
de la nacionalitat catalana"), Prat de la Riba concluded that "if there is a
collective spirit, a Catalan social spirit that has known how to create a
Catalan language, legal system and art, I have said that which I sought to
say, I have demonstrated that which I sought to demonstrate: that is, that
there exists a Catalan nation."'05
Prat de la Riba and his cohort of Catalanists in the Unio Catalanista had
a very conservative nation in mind, as they had made clear in March 1892
at an assembly of Catalanist groups at Manresa, where members approved
a draft constitution of the "Catalan Region." Largely the work of the ar-
chitect Lluis Domenech i Muntaner and Prat de la Riba, the constitution
was the first attempt by the nascent nationalist movement to give a clear
institutional expression to a sovereign Catalan region with legislative, ex-
102. See the speech by Lluis Duran i Ventosa given at the Centre Escolar Catalanista on
23 Nov. 1889, in Prat de la Riba, La nacionalitat catalana, 53.
103. Lluis Duran i Ventosa, Regionalisme ifederalisme, with an introduction by Enric Prat
de la Riba, 2d ed. (Barcelona: Editorial Catalana, 1922; repr., Francesc de Carreras, ed.,
Biblioteca dels classics del nacionalisme catala, 29, Barcelona: Edicions de la Magrana and
Diputaci6 de Barcelona, 1993), 37-40 (page references are to reprint edition).
104. "Discurs del President del Centre Escolar Catalanista de Barcelona Don Enric Prat
de la Riba llegit en la Sessi6 Inaugural del Curs 1890-1891," in Enric Prat de la Riba, La
naci6 i l'estat: Escrits dejoventut, Biblioteca dels classics del nacionalisme catala, 17 (Bar-
celona: Edicions de la Magrana and Diputaci6 de Barcelona, 1987), 13.
105. Enric Prat de la Riba, "El fet de la nacionalitat catalana," in Prat de la Riba, La na-
cionalitat catalana, 93 (emphasis in original).
ecutive, and judicial powers. The importance of Catalonia's distinct legal

system was made clear in the first article of the constitution while the dec-
laration that Catalan would be the only official language (article 3) was an
obvious attempt to guarantee that Catalans would enjoy exclusive access
to public office (article 4). Despite the fact that the Spanish government
had introduced universal male suffrage in 1890-or perhaps because of
this-the constitution of the Catalan Region envisaged a corporate assem-
bly elected by heads of households who would be grouped according to
their social position, profession, or occupation. The Bases de Manresa, 06
as the constitution was known, was a political blueprint for Catalan con-
servatism. This was most obvious in the form of corporate suffrage, which,
as Molas notes, became "the cornerstone of Catalanism"107 in the twenti-
eth century. The constitution retained the household as the principal orga-
nizing unit of Catalan society and made it the basis for a system of repre-
sentation. By disallowing universal male suffrage, it preserved the
hierarchical household relations that kept Catalan society peaceful and well-
ordered. Moreover, the use of corporatism was a further strike against lib-
eralism and, in particular, against free association and the formation of
political parties. There was no need to aggregate interests in this vision of
a Catalan Region, only to articulate them through regulated corporate struc-
tures that were mediated by the disciplined household.
The conservatism that underpinned the Bases de Manresa was a reflec-
tion of the importance accorded Catalonia's social system by the lawyers
who had now risen to positions of influence within the Uni6 Catalanista.
But they had not yet reached their apogee. This would come in 1901 with
the decision of the Centre Escolar Catalanista to capitalize on the achieve-
ments of the 1890s by forming a nationalist political party. The events of
1898, when Spain lost its last colonies in the Spanish American War, forced
a reconsideration of the terms and purpose of political action throughout
Spain, not just in Catalonia.108 But compared to other regions, which were
powerless to defeat Madrid's system of patron-client relations that over-
saw its corrupt and rigged elections, clientelism was not as deeply rooted
in Catalonia, making it relatively easier to start a regional political party.109
Wary of Madrid's reaction to a party carrying a nationalist label, the young
lawyers who would be its leaders opted for the Lliga Regionalista instead.
106. A copy of the Bases de Manresa is reproduced in J. A. Gonzalez Casanova, Feder-

alisme i autonomia a Catalunya (1868-1938) (Barcelona: Curial, 1974), 536-39.
108. Sebastian Balfour, The End of the Spanish Empire, 1898-1923 (Oxford: Clarendon
Press, 1997).
109. Siobhan Harty, "The Institutional Foundations of Substate National Movements,"
Comparative Politics 33 (2001): 191-210.
Lliga Regionalista
The Lliga Regionalista was the party of Catalan lawyers. Data on the pro-
fession or occupation of candidates in the general and provincial elections
between 1901-1923110 demonstrates the extent to which they dominated the
party. Of the 153 candidates who ran for the Lliga Regionalista in the gen-
eral elections during this period, 55 percent were lawyers. In the provincial
elections for the same period, the party fielded 108 candidates, 40 percent
of which were lawyers.11 The next most significant group comprised can-
didates who listed professions in industry or commerce: 26 percent for the
general and 22 percent for the provincial elections. Landowners were in third
place: 11 percent of candidates in the general elections and 17 percent in
the provincial elections. Another indicator of lawyers' predominance among
the party's elite is the membership of the Lliga Regionalista's Comisi6
d'Accio Politica, which Molas claims "directed the activities of the whole
party":112 Enric Prat de la Riba, Ramon d'Abadal, Josep Puig i Cadafalch,
Lluis Duran i Ventosa, and Francesc Camb6-one architect (Puig i Cada-
falch) and four lawyers.113 The Comisi6 d'Accio Politica was by all accounts
the most influential organ within the Lliga. Members were appointed for life;
they were not accountable to any other sector of the party; and there was
no code of procedure governing their actions.
There is no accurate record of party membership that would allow us to
claim with certainty that lawyers were also dominant among the Lliga Re-
gionalista's rank and file. There is one extant party membership list, dated
1911,114 that provides the names and addresses of all 716 members. Since
a professional would also be a member of an association or corporation,
the party list was cross-referenced with membership lists from Barcelona's
professional associations and interest groups to determine professionals'
overall presence in the party. This method allows us to identify the occu-
110. The Lliga Regionalista first fielded candidates in 1901. In 1923, the dictatorship of
Primo de Rivera put an end to parliamentary politics until 1931.
111. There were ten general and nine provincial elections for the period reviewed. The
election of 1907 was omitted since candidates ran as part of an alliance with republicans.
The Lliga Regionalista published the lists of its candidates in its party newspaper (La Veu
de Catalunya), which for most elections also included candidates' profession or occupation.
Those candidates for whom it was not possible to establish their profession using other ref-
erence materials are treated as missing data. The missing data, as a percentage of total data,
stands at 9.5 percent for the general elections and 27 percent for the provincial elections.
The figures reported here exclude the missing data.
113. These names are taken from Francesc de Carreras, "Estudi preliminar," in Duran i
Ventosa, Regionalisme i federalisme, xvii.
114. Lliga Regionalista, Llista de socis (Barcelona, 1911).
pation or profession of approximately one-third of Lliga members: 12 per-

cent of all members were also members of the Col.legi d'Advocats de Bar-
celona while less than one percent of members were architects, pharma-
cists, business agents, or commercial brokers.11 The largest occupational
group within the Lliga Regionalista was made up of shop owners, retail-
ers, and artisans-nearly 15 percent.116 Although this data is not complete,
it does suggest that the owners of small family businesses figured most
prominently among the rank and file of the party while lawyers, and to a
lesser extent industrialists and landowners, occupied the greatest propor-
tion of the party's leadership positions. In other words, the data support the
argument developed in Part 3 that these sectors had conservative interests;
that they formed an alliance for the defense of their conservative interests;
and that their support of nationalism was related to this conservatism.
The Lliga Regionalista espoused a form of conservative nationalism that
largely echoed the 1892 Bases de Manresa. It was cemented with the pub-
lication of Lluis Duran i Ventosa's Regionalisme ifederalisme in 1905 and,
in 1906, of party leader Enric Prat de la Riba's La nacionalitat catalana.
Duran i Ventosa rejected the possibility that the interests of a people could
be defined as the interests of the democratic majority, arguing that "the
nation is not the sum of the will of individuals that is manifested in a giv-
en moment, nor is it the will of the majority. [Instead] the nation is a live
organism," which exists above the will of individuals.'17 Prat de la Riba
maintained something similar: "A nationality is an integral society, natu-
ral, spontaneous, superior to the will of men, superior to the will of public
officials."118 The regionalist doctrine that Duran i Ventosa expounded could
not accept "that the majority of votes cast by those citizens enjoying the
right to vote can represent, in absolute, the nation, especially in the sense
that with such a form of representation everything that this majority de-
cides should be considered legitimate while everything else should not be
considered legitimate."119 Democratic majorities could not determine the
115. See Gufa Judicial de Catalufia, Listas oficiales de los colegios de abogados, procura-
dores y escribanos, 1909, 1910, and 1911; Associaci6n de Arquitectos de Catalufia Oficial
y de Utilidad Piblica 1910, Lista de los individuos que la componen (Barcelona, 1910); Lista
de los agentes de negocios del colegio de Barcelona, 1910 and 1911 (Barcelona: Tip. Valls
y Borras, 1910 and 1911); Colegio de Corredores Reales de Comercio de Barcelona, Indi-
viduos del colegio (Barcelona: Imp. De la Bolsa, 1915). Pharmacists were identified from
the Lliga Regionalista's membership list by their address. It was not possible to obtain
membership lists from doctors' or engineers' associations.
116. These people were identified by the address they provided on the Lliga Regionalis-
ta's membership list. They listed the type of shop or business they ran.
117. Duran i Ventosa, Regionalisme ifederalisme, 149, 152.
118. Prat de la Riba, La nacionalitat catalana, 99.
119. Duran i Ventosa, Regionalisme ifederalisme, 151.
will of the nation, which in fact was almost impossible to discern. There-
fore, the business of politics should be left to "superior minds" that alone
possessed an understanding of the character of the nation.120 All politics,
in fact, was to be reduced to the nation since individuals did not possess
universal rights: "freedom of conscience, of thought, universal suffrage,
none of these can be appreciated in the abstract or completely independent-
ly of the spirit of each country and national needs and aspirations."121
During the 1890s, the Centre Escolar Catalanista and the Unio Cata-
lanista had established that Catalonia was a nation; in the first decade of
the twentieth century this fact was used as the basis for demands for Cat-
alan political autonomy. The Lliga Regionalista was unwavering on this
point: "Each nation must have its state.... No, more: each nation must have
a single state that translates its collective aspirations into action. ... [A
state] is the juridical fact that must correspond to the social fact of nation-
ality."'22 The Lliga Regionalista was not a secessionist party and, at its core,
supported Spain's monarchy. Like other nationalist parties and movements
of the period, it struggled to find the right constitutional expression for
political autonomy. During the first thirty years of the twentieth century,
the Lliga wrote the history of its particular attempts,123 a history that takes
us beyond the scope of this article. What Part 4 has attempted to demon-
strate is how intrinsic lawyers were to these attempts. Their views on Cat-
alonia's social order infused the party's nationalist discourse through their
efforts to construct an argument for the preservation of the region's legal
institutions. The popularity of this discourse-as evidenced by the party's
repeated successes at the poll-was due to lawyers' ability to couch their
conservatism in something that would appeal to all: a national identity that
spoke to what was distinctive about Catalans.
V. Conclusion
This article began with a straightforward purpose: to explain why Catalan

lawyers were opposed to the codification of civil law and how they suc
cessfully opposed it. In addressing the first question, it examined the im-
portance of a particular Catalan legal institution-the universal heir-fo
maintaining social order and ensuring economic prosperity in Cataloni
120. Ibid., 153.

121. Ibid., chap. 3.
122. Prat de la Riba, La nacionalitat catalana, 95-97.
123. Lliga Catalana, Histbria d'una politica: Actuacions i documents de la Lliga Region-
alista, 1901-1933 (Barcelona: Biblioteca de Lliga Catalana, 1933).
This, at least, was the view of Catalan lawyers. They firmly believed that
the casa pairal and the casa industrial underpinned social harmony. Law-
yers were convinced of the validity of their views. They had been educat-
ed to believe them and they committed to them professionally when they
set up their private practice. They were not easily persuaded to convert to
other perspectives. For most of the second half of the nineteenth century,
Catalan lawyers knew that codification was a very real possibility in Spain;
they had plenty of time to arrive at a decision on the merits of replacing
Catalan civil law with a code based on Castilian law. But in their debates
and discussions in both the Col-legi d'Advocats and the Academia de Ju-
risprudencia i Legislacio most rejected codification because of its liberal-
izing features. In their estimation, the introduction of a regime of divisi-
ble property would, within one generation, increase the number of property
owners but decrease the wealth of families. This redistribution of wealth
would multiply the types of interests in Catalan society and the potential
for social conflict. If the hierarchical household could remain intact, conflict
would not be a problem. Interests would be limited to those of the family,
as articulated by its head.
Catalan lawyers were not alone in their conservative view of society. The
potential for creating a coalition of opposition to the Spanish Civil Code
was discovered in their interactions with industrialists, landowners, and
businessmen in the civil society associations they frequented. But the po-
litical expression of this opposition went in fits and starts as Catalans strug-
gled to find the right vocabulary that would allow them to put forward a
coherent argument for political autonomy. Even if terms such as "nation"
and "nationality" existed, they had never been applied to Catalonia-not
even by Catalans themselves. Moreover, to suggest that the sovereignty of
the Spanish state was divisible might result in censure or even the closing
down of corporations and meeting places. By creating a climate for the
reception of these new ideas and terms, Catalan lawyers were able to make
some progress in staking political claims against Madrid. Only nations had
rights to statehood and statehood was the key to acquiring self-governing
powers. For Catalan lawyers, these powers would allow them to move into
positions of political decision making so that they might preserve the con-
servative society in which they felt most secure. Nothing could be more
straightforward in theory and more difficult in practice. As Catalan law-
yers would discover through the Lliga Regionalista, the popularity of this
logic was no guarantee that Madrid would take much notice.
At another level, this article has attempted to show the potential for
concepts such as "nation" and "nationality" to unite sectors even when these
concepts were ill defined or their political implications were not clear. There
was much "muddling through" in the Catalan story but there was also a
focus that kept everyone on board-the campaign against codification. Even

after 1889, the fear that Madrid might change its mind about the appen-
dix124 acted as a strong motivator for continued action. The importance of
the role of ideas for explaining patterns of political action-independent-
ly of whether this action meets its objectives-can tell us something about
how legal change influences longer processes of political development. The
Lliga Regionalista never managed to win statehood for Catalonia but the
party's ideas about Catalan autonomy-which were directly linked to the
politicization of lawyers-shaped Catalan politics until the Spanish Civil
War (1936-1939) and were a reference point for all subsequent twentieth-
century Catalan nationalist parties.
The importance of ideas can add to our general understanding of how law-
yers perceive their role as "gatekeepers" of their profession. We need to move
beyond a materialist view of this role and think more broadly. The status of
lawyers in the civil law world was also related to their role as custodians of
the ideas on which social relations were based. The Catalan case suggests
that lawyers did not take this role lightly; much more research needs to be
done before we can claim that this was true in other cases. However, con-
ducting this research would be key to determining why lawyers in some civil
law countries opposed codification while others did not, thereby adding to
the comparative literature on European experiences of civil law codification.
Catalan lawyers not only opposed codification because of their roles as gate-
keepers and custodians; they were also threatened by the code's liberalism.
Opposition to codification is not necessarily an indicator of conservatism.
This article devoted considerable space to explaining why Catalan lawyers
were conservative and research on other cases should do the same. But so
long as the Catalan case is not unique, it forces us to reconsider our assump-
tion that lawyers are almost always liberal. In part, we need to investigate
nineteenth-century liberalism more closely. Although this has been done for
the German case, the experience of many other European states-including
Spain-has been overlooked or misunderstood.
The study of legal change opens up many avenues of enquiry, underscor-
ing the importance of the law for social and political development gener-
ally. This article has concentrated on the link between legal change and
nationalism as a way of defining the range of European responses to codifi-
cation. It has contributed not only to our understanding of the origins and
orientation of Catalan nationalism but also to the complicated relationship
between state, nation, and sovereignty in nineteenth-century Europe.
124. In fact, the appendix went nowhere largely because of Madrid's inertia. Several un-
successful attempts were made by Catalan legal corporations to compile an appendix be-
fore the process finally got under way in 1960. The compilation was completed in 1984.

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American Society for Legal History, Inc.

Lawyers, Codification, and the Origins of Catalan Nationalism, 1881-1901

CATALAN NATIONALISM AND CIVIL CODIFICATION

Lawyers, Codification, and t

The defense of Catalan civil law against the introduction

1. The most authoritative account of the Lliga Regionalista is Isidre M

Siobhan Harty is lecturer in Comparative European Politics in the Department of

Law and History Review Summer 2002, Vol. 20, No. 2

I. Theory of Civil Law Codification and Lawyers

6. See in particular, R. C. van Caenegem, An Historical Introduction to Private Law, trans.

II. Responses to Legal Pluralism in Spain

The origin of legal pluralism in Spain was a system of composite monar-

11. Ibid., 51.

16. Fueros is Castilian for "regional privileges."

loss of Spain's last colonial holdings in the Spanish-American War (1898),

and receiving specialized training in Catalan legal institutions. As in other

celona's Academia de Jurisprudencia i Legislacio was created to discuss

courses between 1858-1860 were devoted to an examination of the codifi-

III. Catalan Opposition to the Spanish Civil Code

Catalan opposition to the Spanish Civil Code was rooted in a conservative

of a family's standing in its community. More precisely, household wealth

The Universal Heir

In Catalonia's dominant household structure, the patrilocal stem family,42

residential household, it was also a co-economic one. The presence of mul-

The Spanish Civil Code and the Threat of Divisible Property

Therefore, if two Catalans got married in Catalonia with a capitol matri-

we do not have statistics on interprovincial migration in late nineteenth-

Catalan Industry and the Spanish Civil Code

The potential of Article 15 to expand the code's application into Catalon

portant source of "human capital" that contributed to industrial success and

66. Ferrer, "L'6s de la familia per la burgesia de la Catalunya central," 28-32.

A Coalition of Opposition against Codification

68. Ibid., 65.

IV. Catalan Nationalism

The Emergence of the Catalanist Movement

Between 1880-1891, a new political vocabulary emerged in Catalonia as

devoid of internal divisions or factions, particularly class and ideology. This

Puig i Cadafalch.90 According to these young Catalanists, Almirall had not

ga de Catalunya in 1889, organized a public campaign against Article 15

From Catalanism to Nationalism

The defeat of Article 15 was, as Verdaguer i Callis famously proclaime

94. Pagarolas i Sabate, Histbria de l'Academia, 85.

97. Llorens i Vila, La Uni6 Catalanista, 236-46.

ecutive, and judicial powers. The importance of Catalonia's distinct legal

106. A copy of the Bases de Manresa is reproduced in J. A. Gonzalez Casanova, Feder-

pation or profession of approximately one-third of Lliga members: 12 per-

This article began with a straightforward purpose: to explain why Catalan

120. Ibid., 153.

focus that kept everyone on board-the campaign against codification. Even

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