CHAPTER 2

The Law and the Lawgiver

Onde por Todas Estas Rrazones Auemos Poder Conplidamente de Ffazer Leys

In order to fashion a common law to supplant the prevailing disparate forms of law, Alfonso X employed a company of jurists trained in Roman and canon law to compose the Espéculo, the original form of the Siete Partidas, and the Fuero real. Once that task was finished, he promulgated his new codes and declared them binding on his people.

That achievement had its roots in the Roman and Visigothic tradition. After subjugating the Iberian Peninsula,1 the Visigothic kings published several legal compilations culminating in the Liber Iudiciorum or Book of Judges, a comprehensive territorial law promulgated around 654.² Imitating Roman practice, it was divided into twelve books, and these in turn into titles and laws.³ After the Muslims destroyed the Visigothic kingdom in the eighth century, the Liber Iudiciorum survived as a principal element of its legacy.⁴

The Mozarabic Christians subject to Islamic rule continued to be governed by the Liber Iudiciorum, and those who fled to the northern realm of León introduced it there. Unwritten customary law predominated in neighboring Castile,⁵ but in time collections of fazañas or judicial sentences based on custom were assembled.⁶ Castilian territorial customary law was also recorded in the Libro de los fueros de Castiella,⁷ the Fuero viejo de Castilla,⁸ and similar works. Fuero comes from forum, a low Latin word for law. The text of an ordinance purportedly enacted by Alfonso VIII in the Curia of Nájera in 11859 is not extant but may be comprised in the Pseudo-Ordenamiento II de Nájera.¹⁰ Alfonso XI adapted it in the Ordinance of Alcalá in 1348 (cap. 73).¹¹ In the eleventh and twelfth centuries, written charters or fueros regulated life in the municipalities extending southward from the Duero River to the Tagus.¹² Much fuller than most, Alfonso VIII’s Fuero of Cuenca, published in 1177, was later given to towns in Extremadura and Andalucía.¹³ The Fuero viejo supposedly originated when Alfonso VIII, after his triumph at Las Navas de Tolosa in 1212, confirmed the municipal fueros and asked the nobles to summarize their customs, but it is doubtful that they did so.¹⁴ Recognizing the desirability of having a common body of law, Fernando III commissioned the Fuero Juzgo, a Castilian translation of the Liber Iudiciorum or Forum Judicum, and gave it to many towns in Andalucía and Murcia.¹⁵

The Alfonsine Codes

Given the need to clarify the inevitable confusion arising from this legal miscellany, Fernando III initiated work on a new law code but died before he could complete it. In the second prologue (Dios es comienço) to the Partidas, and in the Setenario,¹⁶ a final attempt to revise the Partidas, Alfonso X stated that his father commanded him to finish it. The mid-fourteenth century Chronicle of Alfonso X affirmed that he did so.¹⁷ The tendency to identify the royal law codes by the same or similar names, Libro de las leyes, Libro del fuero de las leyes, Libro del fuero, or Fuero del libro, inevitably prompted misunderstanding.¹⁸ The prologue to each text asserts that Alfonso X was the author and I will refer to him as such, but one should understand that these codes were the result of a collaborative effort by anonymous jurists. The king’s role, as Evelyn Procter commented, was that of a general editor, as he himself explained:

The king makes a book, not because he writes it with his hands, but because he sets forth the reasons for it, and amends and corrects and improves them and shows how they ought to be done; and although the one whom he commands may write them, we say, nevertheless, for this reason that the king makes the book.¹⁹

Among his likely collaborators was Master Jacobo de las leyes (d. 1294), a member of the Giunta family of Italy, who settled in Castile at an uncertain date.²⁰ Three works are attributed to him.²¹ The Summa de los nove tienpos delos pleitos (Summary of the Nine Seasons of Pleas), treating summonses, court appearances, postponements, proofs, and sentences, is a translation of the Ordo iudiciarius ad summariam notitiam of Petrus Hispanus.22 For the instruction of his son Bonajunta, he composed the Dotrinal que fabla delos juyzios (Textbook that Speaks of Judgments), or Dotrinal de pleitos (Textbook on Pleas), a tract on legal procedure. As this work closely resembles the Third Partida, Antonio Pérez Martín regards Jacobo as the principal author of the Partidas. Stressing the value of a legal career, Jacobo remarked that one who learned “the science of law” would be honored by kings and other great lords. The three books of his Flores de derecho also known as Flores de las leyes (Flowers of Law) discussed judges and litigants (1); court procedure (2); and sentences and appeals (3). Pérez Martín demonstrated that it was written around 1274–75 for the king’s illegitimate son Alfonso Fernández, known as Alfonso el Niño, then entrusted with the government of Seville.²³ Another possible contributor was Master Fernando Martínez (d. 1275), archdeacon of Zamora, who, after studying at Bologna, served as royal notary for León and bishop of Oviedo (1269–75). His writings include the Summa aurea de ordine iudiciario or Suma del orden judicial (Summary of Judicial Order), and probably the Margarita de los pleitos (Miscellany of Pleas), written about 1263.²⁴ Robert A. MacDonald suggested other names.²⁵

The Espéculo survives in one codex, MS 10,123 of the Biblioteca Nacional in Madrid, copied about 1390.²⁶ The king made the laws “in this book, which is a mirror of law,” to guide his judges in judging correctly and assuring everyone’s rights. Intended as the fundamental law of the royal court, it was the standard by which all other laws would be judged. The text, however, is incomplete, as only five books, each divided into titles and these into laws, are extant. Book 1 treats law in general and the articles of the Catholic faith; book 2, the king’s role, the royal family and household, and custody of royal castles; book 3, royal vassals, military organization, and warfare; book 4, the administration of justice; and book 5, judicial procedure and appeals. The nonexistent books 6 and 7 reportedly concerned ecclesiastical jurisdiction, the family, manumission, and inheritance. Gonzalo Martínez Díez suggested that a missing book 8 dealt with property and commercial activity, and that book 9 may have discussed criminal law.²⁷

Both Martínez Díez and Aquilino Iglesia Ferreirós concluded that the Espéculo was never terminated and was abandoned in 1256 after Alfonso X was acknowledged as Holy Roman Emperor and work was begun on the Partidas.²⁸ On the contrary, Jerry Craddock argued that it was complete and in force until completion of the Partidas in 1265.²⁹ I agree. The king’s inclusion of excerpts from the Espéculo in ordinances given to Valladolid in 1258 (E 4, 2, 7–9, 11, 13–14, 16, 18),³⁰ and Santiago de Compostela in 1261 (E 4, 10, 3; 4, 11, 1, 5–10, 12, 14) prove that point.31 As he reserved the right to amend the Espéculo (pr.) with the counsel of his court, I believe that, given his imperial election, he transformed the text into the Siete Partidas.

Although most historians believe that the Espéculo was never promulgated, the king commanded his successors to observe it and threatened violators with an enormous fine of ten thousand maravedís. Robert MacDonald argued that he promulgated the Espéculo in 1254 when he asked the Cortes of Toledo to acknowledge his daughter Berenguela as his successor. The king, at Palencia on 5 May 1255, notified Louis of France, her husband-to-be, that that had been done and expressed their marriage contract in language similar to the law in the Espéculo (2, 16, 1) recognizing the right of succession of the king’s oldest daughter, in default of his oldest son.³² Alfonso X surely perceived the symbolic value of promulgating the Espéculo in Toledo, his birthplace and the ancient seat of the Visigoths and the emperors of Spain.³³

Some scholars, citing the so-called Ordinance of Zamora in 1274 (art. 40), have identified the Espéculo with a book establishing chancery fees “made por corte in Palencia” in the year that Prince Edward of England married the king’s sister Leonor in November 1254. That seems to imply that the Espéculo was completed in May 1255 at Palencia. However, the ordinance did not mention a book of laws, a Libro de las leyes. The book referred to was likely a list of chancery fees taken from the Espéculo (4, 13, 4) for easy reference.

In the prologue to the Espéculo, Alfonso X, after describing the confusing legal situation, argued the need for a new body of law common to everyone:

E por esto damos ende libro en cada villa sseellado con nuestro sseello de plomo e touiemos este scripto en nuestra corte, de que sson ssacados todos los otros que diemos por las villas, porque sse acaesçiere dubda ssobre los entendemientos de las leys e sse alçassen a nos que sse libre la dubda en nuestra corte por este libro que ffeziemos con consseio e con acuerdo de los arçobispos e de los obispos de Dios e de los ricos omnes e de los más onrrados ssabidores de derecho que podiemos auer e ffallar e otrossí de otros que auie en nuestra corte e en nuestro rregno.

[For this reason, therefore, we give a book, sealed with our leaden seal, to each town and we kept this written text in our court, from which all the others that we gave to the towns are taken. Wherefore if a doubt should arise concerning the understanding of the laws and appeal should be made to us, the doubt might be resolved in our court by this book that we made with the counsel and consent of the archbishops and bishops of God and the magnates and the most honored scholars of law that we could have and find and also of others in our court and our kingdom.]

The book given to the towns was the Fuero real, probably promulgated simultaneously with the Espéculo. In the prologue to the Fuero real, the king explained that many municipalities petitioned him for a fuero, probably in the Cortes of Seville in 1252. Thus, “taking counsel with our court and with men knowledgeable in the law, we gave them this fuero” and commanded everyone to observe it. Book 1 deals with the Catholic faith, the status of the king, laws in general, and the administration of justice. Book 2 considers legal procedure. Marriage, inheritance, and commerce are discussed in book 3, and criminal law in book 4.34 Although men might study other laws, the king required all pleas to be adjudicated according to this book (FR 1, 6, 5).

Assuming that the passage quoted above referred only to one law book, Alfonso García Gallo, contrary to common opinion, argued that the book, “sealed with my leaden seal,” was the Espéculo.³⁵ If that were true, one would expect that there would be many extant copies rather than one incomplete text. If the Espéculo was intended as a municipal code, the Fuero real would be unnecessary. In my judgment, two different books were mentioned. One, “sealed with our leaden seal” and given to the towns, was taken from another written text (este escripto) preserved in the royal court. Royal charters of 1256 confirming the concession to the towns of the book “sealed with my leaden seal” prove the identity of that book as the Fuero real, whose structure and content derived from the Espéculo.³⁶ As an unfinished work would not likely serve as a model for laws given to the municipalities or be used to clarify doubts or settle appeals, the passage quoted demonstrates that the Espéculo was completed.

Unlike the Espéculo, there are numerous copies of the Fuero real, which the king granted to the towns of Castile and Extremadura, especially those lacking a fuero. As the Fuero Juzgo served the kingdom of León, a separate code was not required there. The physical labor of transcribing by hand perhaps fifty to one hundred copies probably occupied many months. The first references to the Fuero real are dated in 1255, leading many scholars to believe that that was the date of composition.³⁷ None of those dates was the date of promulgation, but rather the date on which a copy was issued to a particular municipality. That accorded with the chancery practice of giving each town a record of the acts of the Cortes dated on the day when it was written. Recalling that he had previously granted the towns “that fuero that I made with the counsel of my court, written in a book and sealed with my leaden seal,” Alfonso X, in 1256 and later, granted tax exemptions to urban knights.38 In 1264 he confirmed the privileges of the towns of Extremadura, including the “Libro del fuero that we gave them.”³⁹ Various references to the Fuero castellano, Fuero de las leyes, Libro del fuero, or Fuero del libro eventually gave way to Fuero real.⁴⁰

Having reserved the right to amend the Espéculo (pr.), Alfonso X, after being recognized by Pisa as Holy Roman Emperor in March 1256 and elected by the German princes in 1257, commenced a revision emphasizing his new imperial status.⁴¹ Descended from Alfonso VII, emperador de España, and Frederick Barbarossa, emperador de Roma, he hoped to revive the claims of his predecessors to rule over all of Spain and to secure papal recognition as Holy Roman Emperor.⁴² The General Estoria likened him to Jupiter, “king of this world,” the ancestor of the kings of Troy and Greece, the Caesars and emperors of Rome.⁴³ Although the primary audience of his revised code, written in the vernacular and later known as the Siete Partidas, was the people of Castile-León, he may have intended to have it translated into Latin to give it wider circulation especially within the empire.⁴⁴

The extant codices of the Partidas (with one partial exception) date from the fourteenth or fifteenth centuries, and at least 115 manuscripts of the entire text or one or more of its parts in Castilian, Galician, Portuguese, and Catalan survive.⁴⁵ Two texts amplifying book 1 of the Espéculo represent the initial version of this new code: the British Library manuscript Additional 20787,⁴⁶ and HC 397/573 in the library of the Hispanic Society of America.⁴⁷ The prologue (beginning A Dios deue) identified the text as the Libro del fuero de las leyes. Composition commenced on the vigil of the Nativity of St. John the Baptist, in the era 1294 [23 June 1256] and was completed on the eve of the Passion of St. John the Baptist in the era 1303 [28 August 1265]. The text (identified as Biblioteca Real 3), printed at the foot of the Real Academia de la Historia’s edition of the Partidas, is essentially the same as Additional 20787 and has the same dates of composition.⁴⁸ Craddock argued that the Libro del fuero de las leyes was an intermediary stage between the Espéculo and the Partidas and that it is incorrect to refer to it as the Primera Partida.⁴⁹

None of the three editions of the Partidas exemplifies the criteria of modern scholarship.⁵⁰ Alfonso Díaz de Montalvo published the first in 1491;⁵¹ Gregorio López, the second with an extensive gloss in 1555;⁵² and the Real Academia de la Historia, the third in 1807.⁵³ López’s edition gained general use in the courts, and I will usually cite it.⁵⁴ Given its impact on several southwestern states, the American Bar Association commissioned Samuel Parsons Scott to translate López’s text.⁵⁵

Although the second prologue (Dios es comienço) to the Partidas dated the work between 23 June 1256 and 1263, Craddock asserted that the earlier dates (23 June 1256 to 28 August 1265) are correct and that the later dating reflected the king’s increasing fascination with the number seven.56 In Alfonso X’s honor, the first letter of each Partida was one of the seven letters in his name. The section entitled Septenario, following the second prologue, highlighted the significance of the number seven and explained that the book was divided into seven parts. Accordingly, the Libro de las leyes has been known as the Siete Partidas since the end of the thirteenth century (SP 1, 1, 1). Citing Alfonso X’s last will, dated 10 January 1284, in which he bequeathed to his successor “the book that we made with the name Setenario,”⁵⁷ Craddock maintained that Septenario or Setenario was the title preferred by the king and that the incomplete work known as Setenario is a final revision of a portion of the First Partida carried out after 1272.⁵⁸

The Setenario relates that it was begun by Fernando III who, on his deathbed, commanded Alfonso X to complete it (leyes 2, 4, 10).⁵⁹ The royal predilection for the number seven is evident in the discussion of the divine attributes, but also in the reduction of Fernando’s name to Ferando. Moreover, the seven letters of Alfonso are said to exemplify the seven names of God (ley 1). Alfonso X inscribed a poignant eulogy of his father and praise of Seville, “the most noble [city] of Spain” and “anciently the household and dwelling place of the emperors who were crowned there.”⁶⁰ An extensive commentary on worshippers of the elements of earth, water, wind, and fire, the planets and astrological signs, and the odd mixture of astrology and Christian theology (leyes 12–34, 43–68) reflects the preoccupation of his last years, but seems at variance with the intent of a law book. The remainder (leyes 35–42, 69–108), summarizing church teaching and the seven sacraments, corresponds to the First Partida.⁶¹

The Siete Partidas consists of seven parts, each divided into titles and then into laws. The prologue to each title explains its purpose and the content of the laws. After a general disquisition on law, the First Partida (24 titles, 518 laws) discusses the Christian faith and the organization of the church. The Second (31 titles, 359 laws) concerns the king, his court, his people, and his military organization; the Third (32 titles, 543 laws), the administration of justice; the Fourth (27 titles, 256 laws), marriage and the family; the Fifth (15 titles, 374 laws), trade and commerce; the Sixth (19 titles, 272 laws), wills and inheritances; and the Seventh (34 titles, 363 laws), on crime and punishment, concludes this extraordinary enterprise.

A thorough study of the sources remains to be undertaken. In addition to Justinian’s Corpus Iuris Civilis,⁶² the king’s men, citing sabios antiguos (including Aristotle, Cicero, and Seneca), drew on Roman and canon law, philosophy and theology,⁶³ the Bible, the Fuero antiguo de España, the Fuero Juzgo, and other texts. The skillful incorporation of ideas and principles from these sources and the didactic tone has given the Partidas a distinctly doctrinal character. At times the Latin form of a word is given and defined and several reasons might be adduced to explain it. As his people’s educator, Alfonso X realized that if they understood the rationale for a law they would be inclined to obey it.64 García Gallo compared the Partidas to the Summa Theologica of the king’s contemporary Thomas Aquinas.⁶⁵ MacDonald characterized this “juridical summa” in these words:

The Siete Partidas represents an encyclopedic and systematic integration of definition, prescription, explanation, and amplification of materials from many sources—classical and contemporary, canonical and secular, Roman and Castilian, legal and literary…. In intent and character the law becomes instructive and preventive, rather than penal, as definitions and moral maxims are used skillfully to clarify, exhort, or admonish.⁶⁶

In the Ordinance of Alcalá (cap. 64) in 1348, Alfonso XI, believing that there was no evidence that the Partidas had been promulgated, proclaimed that henceforth the code would have the force of law.⁶⁷ Although his statement has generally been accepted, I believe that he was incorrect. His chancellor Fernán Sánchez de Valladolid, the probable author of the Chronicle of Alfonso X, remarked that the king completed the Partidas begun by his father and commanded everyone to accept them as the law and required judges to judge according to them.⁶⁸ As I argued above, Alfonso X likely promulgated the Espéculo in the Cortes of Toledo in 1254 and, having reserved the right to amend it, transformed it into the Siete Partidas. As a revision of the original code, the Partidas did not require a separate act of promulgation.⁶⁹ Nevertheless, Alfonso XI’s declaration in 1348 dispelled any ambiguity about the validity of the Partidas.

Several other legal compilations should be noted. The so-called Ordinance of Zamora survives in a sixteenth-century copy. An introductory statement (Siguense) asserted that Alfonso X enacted it during the Cortes of Zamora in 1274 with the consent of the people. The text relates that in June 1274, the king (whose name is not mentioned) consulted bishops, religious, magnates, and judges concerning the settlement of pleas. After he presented a written statement of his views, they took counsel among themselves and submitted written responses. The scribes and lawyers, though not asked to do so, also offered written opinions. In response, the king directed attention to advocates, judges, scribes, and the king. Eleven casos de corte, cases reserved to royal jurisdiction, were identified.⁷⁰

This document lacks the typical intitulation and salutation of legislative acts promulgated by the king, to whom it refers in the third person. Nor does it follow the usual form of dating royal documents. The final clause states that it was made on the king’s command nineteen years after he gave the fuero castellano to Burgos at Valladolid on 25 August 1255. I do not believe that the introductory statement (Siguense) or the dating clause were part of the original text. Omitting them, we have a fragment of a memorandum recording the agreement reached by the king and his court concerning the processing of pleas. I do not believe that the king convened the Cortes in Zamora in 1274 or that he promulgated this ordinance in the Cortes. He issued numerous charters at Zamora between 5 June and 27 July 1274, but none records actions taken in the Cortes or states that he convened the Cortes. The ordinance does not mention municipal representatives who were ordinarily summoned to the Cortes.71

Master Roldán, whose name suggests that he may have been an Italian legist, commissioned by the king, composed the Libro de las Tafurerías, a code of forty-six laws regulating gambling houses, a topic omitted in the other codes. MacDonald suggested that the king promulgated it during the Cortes of Burgos in 1276.⁷²

The five Leyes para los adelantados mayores described the duties of territorial administrators in Andalucía and Murcia.⁷³ Lacking any indication of authorship or date of publication, this probably was a private collection.⁷⁴ The Leyes nuevas is also a private compilation of royal responses to questions posed by the judges of Burgos concerning the application of the Fuero real.⁷⁵ The 252 laws of the Leyes del estilo, completed around 1310, concern the practice of the royal court from the time of Alfonso X to that of Fernando IV (1295–1312).⁷⁶

King Alfonso as Lawgiver

The diversity of laws and the usage of incomplete and altered texts impeded Alfonso X’s task of enacting just laws and rendering certain judgment. His laws facilitated knowledge and understanding of the law and guaranteed everyone’s rights (E pr.). The Fuero real (1, pr.) and the first (A Dios deue) and second (Dios es comienço) prologues to the Partidas (PPBM; PPHS; SPGL) expressed similar ideas.⁷⁷ Although the Partidas seems like an academic treatise or legal encyclopedia, Alfonso X surely intended it to have the force of law. As its laws were written to serve God and the common good, everyone had to obey them and be judged by them (SP 1, 1, pr.). The language of command manifested that purpose: “mandamos” (we command) (SP 3, 3, 8; 7, 1, 20); “tenemos por bien” (we hold it as right) (SP 6, 3, 18; 7, 2, 5); “tenemos por bien e mandamos” (we hold it as right and we command) (SP 3, 2, 43); “porende diximos” (therefore we state) (SP 5, 2, 2); “otrossi dezimos” (we also state) (SP 5, 2, 3); “ca derecho es” (because it is the law) (SP 6, 1, 23); “assi como mandan las leyes deste libro” (as the laws of this book command) (SP 3, 3, 1; 3, 3, 9). Judges had “to adjudicate [pleas]… by the laws of this book and not by any other” (SP 3, 4, 6), and the people had to know its laws (SP 5, 14, 31).

Ruling by God’s grace, and having no temporal superior (“por la merçed de Dios non auemos mayor ssobre nos en el tenporal”), Alfonso X argued that only emperors and kings could make laws (E 1, 1, 3, 13; PPBM 1, 1, 4, 13; SPRAH 1, 1, 12). King Alfonso and his predecessors exercised the legislative function in a limited way by granting charters of rights and privileges to individuals, communities, and municipalities. His laws enacted in the Cortes with the counsel and consent of the three estates were recorded in cuadernos or notebooks given to municipal representatives at the conclusion of each session. The extant records of the Cortes of Seville in 1252,78 and 1253,⁷⁹ Valladolid in 1258,⁸⁰ and Seville in 1261,⁸¹ and the Assembly of Jerez in 1268,⁸² reveal that sometimes he took the initiative, but in other instances, the townsmen presented petitions that he enacted into law. Some of those laws made their way into or otherwise influenced the Alfonsine Codes.⁸³

As a law applicable to everyone, the Alfonsine Codes aspired to advance the common good and encourage obedience to God and the king. The king ought to make law with the counsel of knowledgeable men, and with “the consent of those upon whom it is imposed” (SP 1, 2, 8). That accorded with the Roman legal principle “quod omnes tangit, ab omnibus approbari debet” (what touches all should be approved by all).⁸⁴ Inspired by the love of justice and truth, the legislator ought to assure everyone his due (“que aya cada uno lo ssuyo”).⁸⁵ Listening attentively to everyone, he should explain the law with well-reasoned argument and measured language. While standing firmly against the cruel and the proud, he ought to show mercy to the guilty and unfortunate (E 1, 1, 4; PPBM 1, 1, 5; SPRAH 1, 1, 6).

Laws should be carefully drafted so that they were free of error and contradictions. As a law contrary to divinity, royal sovereignty, and the common good required correction, the king, after consulting legal scholars and good men from many regions, should publish the amended laws. Included in the Partidas, a new law would have the same validity as other laws (SP 1, 1, 17–19). Without exception all residents of the kingdom, including foreigners, had to obey the laws (SP 1, 1, 15). No one could plead ignorance of the law (FR 1, 6, 4), except minors, peasants, shepherds, madmen, women, and knights (E 1, 1, 11–12; PPBM 1, 1, 11–12; SPRAH 1, 1, 14; SPGL 1, 1, 20–21).

The king, too, ought to observe the law, even though “all laws and all rights are subject to him and no other human being has his power except God whose place he has in all temporal affairs” (FR 4, 25, 5). Nevertheless, he should obey the laws because they honor and protect him, and assist him in doing justice, and, as the maker of laws, he should be the first to keep them. The people should do so because he commands them and the laws are good and overcome injury and are beneficial to them (E 1, 1, 9; PPBM 1, 1, 9; SPRAH 1, 1, 11). The lawmaker’s failure “to live according to the laws” would encourage others to disregard them (SP 1, 1, 15–16). Those remarks reflect two Roman legal principles, namely, “Princeps legibus solutus est” (the prince is released from the laws) (D 1, 3, 31); and “Digna vox maiestate regnantis legibus alligatum se principem profiteri: adeo de auctoritate iuris nostra pendet auctoritas” (It is a statement worthy of the majesty of a reigning prince for him to profess to be subject to the laws; for our authority is dependent upon the authority of the law) (C 1, 14, 4).86 Recognizing the hypocrisy of exempting the prince from obeying the laws, while requiring everyone else to do so, the royal jurists acknowledged that the laws would be more effective if the prince, as well as the people, submitted to them.

As law was the essential foundation for an orderly society, Alfonso X’s task was to declare what law was. Following Roman tradition, he acknowledged jus naturale or natural law, inhering in all creatures, and jus gentium, the law of nations, restricted to human beings. The latter, derived from human reason, constrained violence and required everyone to obey governing authorities.⁸⁷ The teachings of saints and wise men also gave rise to spiritual and temporal laws, which, taken together, reflected the union of body and soul (SP 1, 1, 2–3).

Terms used for law included ley, derecho, fuero, postura, establecimiento, and ordenamiento.⁸⁸ The generic term ley (lat. lex) was a written direction to do right and avoid evil, but it could also refer to a religion, for example, Christianity, Islam, or Judaism (E 1, 1, 7; SP 1, 1). Derecho (lat. directum), meaning what was right, also signified law in general.⁸⁹ Fuero (lat. forum) was a law observed for a long time, whether written or not (E 1, 1, 7). Postura (lat. positura) denoted an agreement, contract, judicial decision, or the enactments of the Cortes.⁹⁰ Paramiento (lat. parare), an agreement made for the common good (E 1, 1, 7), was used by Fernando III to describe the acts of the Cortes of Seville in 1250.⁹¹ Establecimiento (lat. stabilimentum) referred to a statute. The word establecemos was used throughout the Alfonsine Codes to declare the law.92 The king did not usually refer to ordenamientos or ordinances, but he did so in 1278 and 1281 and the word came into use thereafter.⁹³ Except for paramiento and ordenamiento, the Espéculo (1, 1, 1) brought all these terms together by affirming that “these laws (leyes) are decisions (posturas), statutes (establecimientos), and laws (fueros)” enacted so that men might observe the Christian faith and live together in “right (derecho) and justice” (PPBM 1, 1, 2; SPRAH 1, 1, 2). The Partidas (1, 1, 1) declared that “these laws (leyes) are statutes (establecimientos) enabling men to live well and in an orderly manner.” Law (ley), whose commands are loyal and right (derecho), not only teaches one to do good, but also to avoid evil (SP 1, 1, 4).

The law, embodying all that was right and true, and in accord with reason and nature, should be complete and free from error. Avoiding verbosity that encourages tortured interpretations, it should be written clearly and accurately in easily understood language. Abbreviations should be avoided and every word fully written out. Laws ought not to contradict one another. The legislator could clarify obscure or uncertain passages and, if necessary, enact new laws. Law punishes evil, rewards good; assists people to know, love, and fear God; teaches them to be obedient and loyal to their natural lord, to love one another, to assure each one’s rights; and dissuades them from doing what they should not do (E 1, 1, 2, 5–6, 8; FR 1, 6, 2; PPBM 1, 1, 3, 6, 8; SPRAH 1, 1, 4, 7–8, 10; SP 1, 1, 10, 13–14).

Neither the Espéculo nor the British Library and Hispanic Society texts refer to unwritten law, but the López and Academia editions considered usage (uso), custom (costumbre; lat. consuetudo), and fuero. Usage, or human activity over a long time, leads to local or general custom, a practice followed for ten or twenty years and confirmed by two court judgments. Conforming to reason, custom should not contravene divine law, royal sovereignty, natural law, or the common good. Custom was often incorporated in written fueros. A recently enacted fuero could override an older custom. That sentence emphasized that the Fuero real superseded earlier customs. A fuero, reasonable, equitable, right, just, and serving the common good, should be made with the counsel of intelligent men and the agreement of the king and the people subject to it. If it no longer served that purpose, it should be abolished (SP 1, 2, 1–10).

The Academia edition added a final law demonstrating the superiority of written laws (SPRAH 1, 2, 11). Written laws were certain and not subject to interpretation by men of little intelligence or to the arbitrary judgment of fazañas. Not swayed by love or hate, promises or threats, the law guarded the rights not only of the lowliest person, but also of the king. The law equally served one who was mad, or sane; one who was intelligent, or not; one who was well spoken, or not. Written law was endowed with great honor because emperors and kings commanded learned men to make it, using well-chosen words, and by virtue of being written it would not fall into oblivion. Whereas custom might be changed at will, written law could only be corrected by enacting an amendment. Given the works of literature, history, and science published in the king’s name, the statement that the law “speaks of noble and honored deeds more so than all other written texts” (SP 1, 2, 11) suggests a predilection for the law. Though sanctioned by long usage, customs and fueros were defective and would be corrected, or supplanted by the more honorable laws of the Libro de las leyes.

As one might expect, people found it difficult to adjust to the new juridical regime and asked for guidance in interpreting difficult or obscure points of law. Both Cuenca in 125694 and Escalona in 1261 sought further explanation of the privilege given to urban knights. Three years later, the king admonished the people of Escalona to abide by the Libro del fuero, and in 1269 he recalled that he had given them the Fuero real and the tax exemptions of 1256.⁹⁵ In order to resolve disputes concerning the administration of justice, he sent excerpts from the Espéculo to Valladolid in 1258 and to Compostela in 1261.⁹⁶ When Miranda de Ebro in 1262 and again in 1272 expressed its aggravation with “the Libro del ffuero nuevo,” he confirmed the town’s previous fuero.⁹⁷ He responded to queries from Burgos in 1263 and 1268 concerning difficult passages in the Fuero real.⁹⁸ When Vitoria complained in 1271 of certain matters in the Fuero real, he ordered his alcalde, Diago Pérez, to meet with the city council and to propose reforms. He also commanded that lawsuits be adjudicated according to the Libro del fuero.⁹⁹

The negative reaction to his legal innovations prompted the magnates to voice three juridical grievances during the Cortes of Burgos in 1272. First, they objected to being judged by the Fuero real used in towns adjacent to their lordships. Secondly, protesting the absence of alcaldes de Castilla in his court, they demanded the appointment of two noble judges (alcaldes fijosdalgo) to adjudicate their disputes. Thirdly, disparaging the merinos mayores, they insisted that he replace them with adelantados. In asserting their right to be judged by their peers according to their ancient customs, they implicitly rejected the legists trained in Roman law serving in the royal court. The king, eager to pursue his imperial ambitions, confirmed the magnates’ customary fueros; assured them that they would not be judged, without their consent, according to municipal fueros; and pledged to appoint alcaldes de Castilla to resolve their lawsuits. He also agreed that if any noble had a quarrel against him it would be adjudicated by his fellow nobles in accordance with the “ancient fuero.” Although he promised to correct the excesses of the merinos mayores, he refused to replace them until the country was settled. After the magnates went into exile to Granada, he appointed a commission headed by Queen Violante to negotiate their return. Insisting that he ratify their customs and privileges, and objecting to the presence of legists and canonists in his court, they reiterated their demand to be judged by laymen. According to the Fuero viejo (pr.), he restored their traditional fueros at Martinmas (11 November 1272) and instructed Burgos to use its old fuero. Charters issued to Madrid, Soria, Béjar, Cuenca, and Sepúlveda in October 1272 suggest that he restored the traditional fueros of the Castilian and Extremaduran towns.100 In 1273 he restored to Baeza the Fuero of Cuenca used there “until we gave them this other fuero.”¹⁰¹ The towns, in return for permission to appoint their own judges, granted an annual tribute to complete his imperial quest. At the end of 1273 the magnates renewed their allegiance and in the Cortes of Burgos in 1274 agreed to support his proposed journey to the empire.¹⁰²

Although the king ostensibly modified his original plan to create a common royal law, the Alfonsine Codes continued to shape the course of the law. The citation of two laws from the Seventh Partida (7, 12, 3; 7, 14, 7) in the Leyes del estilo (4, 144) indicates that the royal legists persisted in applying the great law code.¹⁰³ The Fuero real also remained in use. For example, in 1279 he provided Alba de Tormes with a new copy to replace the one that was lost.¹⁰⁴

La Ley Ama e Ensenna las Cosas que Son de Dios

Alfonso X and his jurists, after long years of labor, produced two major codes of law, the Libro de las leyes and the Fuero real, that altered the juridical landscape of Castile-León forever. The Libro de las leyes, conceived as a body of law by which all others would be judged, was revised successively in order to clarify the meaning of the laws. The comparatively brief Espéculo, probably promulgated in the Cortes of Toledo in 1254, gave way to the more elaborate Siete Partidas. As he reserved the right to amend his code, the Partidas did not require a separate promulgation. Rejecting the older customs and fazañas as arbitrary and irrational, he stressed that the principal goal of the Libro de las leyes was to foster the common good, by assisting his judges to adjudicate cases and assure everyone’s rights. The people, too, were instructed not only in receiving the law, but also in their duty to obey the king who enacted it and enforced it for the good of everyone. As the law reflected God’s will, and as the king ruled by God’s grace, refusal to abide by the laws was an offense against God.

By means of the Libro de las leyes, the Fuero real, and the Fuero Juzgo, Alfonso X hoped to forge a common body of law for his realms. He expressed his understanding of law’s purpose in this way:

La ley ama e ensenna las cosas que son de Dios, e es fuente de ensennamiento, e maestra de derecho, e de justicia, e ordenamiento de buenas costumbres, e guiamiento del pueblo e de su vida, e es tan bien para las mugeres como para los varones, tambien para los mancebos como para los viejos, tan bien para los sabios como para los non sabios, asi para los de la cibdat como para los de fuera, e es guarda del rey e de los pueblos.

[The law loves and teaches the things that are of God. It is a fountain of learning, a teacher of righteousness and justice and the regulation of good customs, a guide for the people and their life. It is both for women and for men, both for the young and the old, for the wise and the not-so-wise, for those living in the city and those without. It is protection for the king and the people.] (FR 1, 6, 1)

Despite that ideal, opposition compelled the king to confirm the traditional customs of the nobility and the townsmen, but he never fully abandoned his plan to create a new law for everyone that “all could understand, that deceived no one… that was honest, equal, and beneficial” (FR 1, 6, 2). As the purpose of the Libro de las leyes was to enable his people to live in peace and justice, we must now consider its practical application in everyday life.