A living Museum of Antique Laws
A year after I left Cambridge I moved to Canada where I found that even my third in maths was more appreciated than my 2.1s in the LL.B. and in the English bar exams. As a result I pursued an actuarial career. However, I always retained a fondness for law.
When I retired, I moved to Andorra. So, in 2010, when the University of Andorra announced a one year survey course of Andorran Law, I was interested and made further enquiries. I was rather nervous, that even after twelve years here, my Catalan might not be good enough to let me follow all that the lecturers would say and then write a 20 page dissertation and defend it in Catalan, which is the official language
of Andorra. However, I took the plunge and I found it fascinating.
In, nominally, 240 hours, the course covered Catalan legal language, history
and sources of Andorran law, constitutional law, criminal law and procedure, private law and procedure, private international law and administrative law.
The history and sources of Andorran law are closely intertwined with the country’s constitutional development. Andorra, like the other ministates of Europe, is a historical accident. In about 954 Count Sunifred of Urgell transferred his lordship over Andorra to the Bishop of Urgell. However, the bishop had no forces to defend his possessions in troubled times so he enfeoffed a friendly local lord as co-lord of Andorra. They were all vassals of the King of Catalonia-Aragon. When, for the second time, the male line of the secular co-lord died out, there occurred the decisive event in Andorran history: in 1208 the heiress married the Count of Foix, a vassal of the King of France. When the Count and the Bishop had a dispute it was settled by a treaty, the Pareatge of 1278, and this, with occasional amendments, was the constitution of Andorra for 715 years. In the course of time, the Counts of Foix inherited first the Kingdom of Navarre and then the Kingdom of France when Enric II of Foix, a.k.a. Enric III of Navarre, became Henri IV of
France. Had there been only one lord or had both been of the same feudal allegiance, Andorra would surely have been absorbed by one neighbouring country or the other when the power of the kings replaced the feudal powers of the nobles. As it is, the co-princes of Andorra, with very limited but yet real powers, are still Archbishop Joan-Enric Vives, the Bishop of Urgell, and Emmanuel Macron, the President of France.
The criminal law and the administrative law of Andorra are codified and are largely put together by copying from the French and Spanish systems. It is the civil law which is special. When an Andorran lawyer refers to el codi in the context of civil law, you might expect that he is referring to the code of laws which bears the name of the famous emperor of the French (and co-prince of Andorra) and which that emperor drew rather forcefully to the attention of almost all of continental Europe in the early 1800s. But if you think that, then you would be wrong. Wrong emperor! Wrong century! In fact, wrong millenium!! El codi is the code of the Roman emperor Justinian II who died in 565 AD. And if someone bashes in your car, an Andorran lawyer will tell you, quite unselfconsciously, that you must file your suit within a year under the lex Aquilia. That law dates from the early third century BC.
Technically the basis of Andorran civil law is the local custom, as amended by the 1993 constitution, by treaties and by legislation of the parliament, and the co-princes before 1993. However,the two most authoritative 18th century collections of customs, the Manual Digest of Antoni Fiter i Rossell and the Politar of Antoni Puig, make it quite clear that, when there is no contrary local custom, Andorran law is the Roman Law as applied together with Canon Law in Catalonia before the New Basis imposed by Philip V of Spain in 1716.
With significant help from my first Catalan teacher, who has become a good friend, I wrote my dissertation about how the forms of law were used to circumvent laws. I started in Roman times by citing examples of the use of the fideicommissum, the Roman testamentary trust, which is still part of the law of Andorra. I then compared and contrasted the Anglo-American concept of the trust with the fideicomissum, quoting Abdul Hameed v de Saram [1946] A.C. 208. In looking for an offbeat English example of evading laws by the forms of law, I remembered a scene set in the 18th century in Charles Dickins’ Barnaby Rudge, In that scene Mr. Haredale, the rigidly Catholic father of the heroine, reproaches Lord George Gordon:
“Is it not enough, my lord, that I, as good a gentleman as you, must hold my property, such as it is, by a trick at which the state connives because of these harsh laws;…”.
I had some difficulty finding the citation for that particular harsh law since, fortunately, no part of it is still in force. For those interested, it is section IV of An Act for the further preventing the Growth of Popery (1699-1700 11 & 12 Will.III c. 4). The means of evasion were, of course, the English trust.
Finally I commented on the use of Andorran prestanoms (name lenders) who enabled foreigners to be the effective owners of businesses which were, in principle, barred to foreigners.
Looking at the decisions of the Andorran Superior Court, which since 2003 have been published on line ( http://www.justicia.ad/web/php/organitzacio.php?orgPK=3 ), I was very positively impressed with the quality and fairness of the decisions. I have been telling the expatriate community here that it is by no means the case that the foreigner always loses. When a business using a prestanom went bust and the foreign real owner could not be found, it was the Andorran prestanom who had to pay the creditors of the business, irrespective of whether those creditors were foreigners or non-residents, or both. All this was originally based on a bold interpretation of a principle known to the Romans and set out in the Digest of legal opinions promulgated as law by Justinian (D. 17, 2, 82).
Even in the lower court, la Batllia, I know of a case where the judge decided in favour of an Englishman and against a plumber who had overcharged him. In deciding a side issue, she cited no less than two Byzantine emperors: Zeno (Cod. 7, 51, 5) and Justinian II (Nov. 82, c, 10). She also cited precedents in the Superior Court of Andorra.
A young Andorran lady, a schoolteacher of Catalan whom I met at a dinner, summed it up pithily: “Andorra is a museum of antique laws”. She was right, but then, I like going to museums and particularly watching museum pieces which still effectively perform the task for which they were created.
Oh, and yes, the examiners were kind and I did get my diploma.
Charles Schaller-Kelly, St Julia, March 2023
