From the Judge’s Arbitrium to the Legality Principle: Legislation as a Source of Law in Criminal Trials, Georges Martyn, Anthony Musson, and Heikki Pihlajamäki, eds., pp. 189-205, 2013
18 Pages Posted: 18 May 2011 Last revised: 11 Jun 2013
Date Written: 2013
The reform of criminal law was an important aspect of the Constitution of Cádiz and one that was commented on and explained at length. Although not containing a list of enumerated rights, the Constitution provides for some individual rights, including rights of the criminally accused, at various places in its text. Fearful of unrestrained royal authority to imprison individuals, the Constitution prohibits the king from depriving individuals of their liberty or imposing punishment. It criminalizes actions of executive or judicial officials carrying out such royal orders. When, on account of the security of the state, officials detain an individual on the king’s order, the accused is afforded presentment before a judge within 48 hours. The Constitution places similar prohibitions on the king’s power to seize property. (Art. 172). In addition to imposing substantial limitations on the king related to accusing and punishing criminal suspects, the Constitution also contains a relatively detailed description of the power of the courts and their duties in criminal matters. Thus, only courts may try criminal causes; the function of courts is exclusively judicial. (Arts. 242-245). Judges are personally liable for failing to observe the law. (Art. 254). Prisoners have the right to know the crime for which they are charged and to be presented to a judge. (Arts. 287, 29'7. Punishment may only follow after an information of the facts, a violation of law, and judicial order. (Art. 287). Forfeitures of good are permitted only for crimes carrying a financial punishment. (Art. 294). The Constitution prohibits torture and confiscation. (Art. 303, 304). Searches must be conducted under law and only for the goods order and security of the state. (Art. 306). Furthermore, the Constitution contemplates one criminal code of universal application throughout the nation. (Art. 258). Thus, the Constitution of Cádiz expresses the Legality Principle and ancillary aspects in several important provisions.
This study analyses the origin of these and related provisions in the Constitution. It examines the debates of deputies in the sessions of the Cortes, explanatory works regarding the Constitution such as the Discurso Preliminar, and the writings of deputies to reconstruct the debate over the place of these provisions in the Constitution and the nation. Such provisions not only were the product of newer, liberal thought but also were grounded in and justified by the established practice of centuries of Spanish law. They accordingly provide a fascinating example of the deputies in Cádiz asserting the legitimacy of constitutional texts through political arguments that employed claims of both innovation and historicity.
Suggested Citation: Suggested Citation
Mirow, M. C., The Legality Principle and the Constitution of Cádiz (2013). From the Judge’s Arbitrium to the Legality Principle: Legislation as a Source of Law in Criminal Trials, Georges Martyn, Anthony Musson, and Heikki Pihlajamäki, eds., pp. 189-205, 2013; Florida International University Legal Studies Research Paper No. 11-14. Available at SSRN: https://ssrn.com/abstract=1844486