¿El escudo como "instituta"? "Ius Commune/Ius Proprium" en Escocia y Vizcaya bajo la Ilustraciónuna comparación

Abstract

as a characteristically Protestant genre that has tended to shape European – and with it Spanish – legal historiography since F. Wieacker, this study compares the different way in which this phenomenon, actually present throughout Europe, developed in Scotland and Biscay. It was, in both territories, a means with which to affirm the land’s own law, as opposed to English «common law» in the first case and as opposed to the «common law of the kingdom» in the second. However, there are important differences between the two territories. If, in the Scottish case, the phenomenon of the Instituta had an extensive application, which allowed it to be continuously updated from the second half of the 17th century, through the work of the Viscount Stair, and throughout the 18th century, even after the Act of Union of 1707, in the case of Biscay, the restrictions imposed by the censorship that the royalty of printing entailed only allowed the elaboration of a text, the Escudo de la más constante fe y lealtad (Shield of the most constant faith and loyalty of Biscay), attributed to the Biscayne jurist Fontecha y Salazar, which, however, it was never possible to print as an independent text. However, censorship alone does not explain the difference between the two territories, since the recourse to one’s own history as a means to substantiate this type of publication was very different in the Scottish case – where it did not clash with the dominant conception of a common British history – and in the case of Biscay, which, from the beginning, came into conflict with a ‘standardised’ legal history of Spain, which, starting from the Visigoth monarchs as legislating kings, the Legal Enlightenment attempted to construct under the Bourbons.