LA DISTRIBUCIÓN DE COMPETENCIAS EN MATERIA DE LEGISLACIÓN CIVIL. DE LA CONSTITUCIÓN ESPAÑOLA DE 1931 AL ESTATUTO DE CATALUÑA DE 2006.

Abstract

Article 149.1.8 of the Spanish Constitution, which addresses legislative competence in civil law matters, still generates a great deal of conflict, and Constitutional Court doctrine has failed to settle the question definitively. On several occasions criteria of political opportuneness have prevailed over juridical reasoning, which has not helped solve the problem. The situation of uncertainty is especially serious if account is taken of the growing development of territorial civil law, especially in Catalonia, a community where a civil code of the region's own is already a reality. The precedents and pre-legislative texts pertaining to article 149.1.8 of the Spanish Constitution are of inestimable value for the interpretation of the article. The debates in the Second Republic surrounding the approval of the Spanish Constitution of 1931 and the 1932 Statute of Catalonia are especially interesting. There we find such interesting assertions as those of the illustrious jurist and politician Felipe Sánchez Román, according to whom «some four of five cardinal rules are the general bases of contracting, and the rest are not general bases of contracting at all; they are the rule of autonomy of will, the rule of form, etc.». Also very illustrative is the parliamentary trajectory of article 149.1.8 in the Constitution of 1978, which shows us how legislators, although aware of some concepts' lack of transparency, have not quite clarified the murky concepts, which may lead to suspicion that certain obscurities were not involuntary, but rather more or less deliberate. The last link in the chain is article 129 of the 2006 Statute of Catalonia, which has involved the taking of a position with respect to the interpretation of the thorny concepts of «conservation, modification and enactment» of regional or special civil laws, attributing legislative competence in civil matters to the Generalitat of Catalonia, limited only by the matters reserved for the State by article 149.1.8 of the Spanish Constitution.