The Commons

In Asturias we have a common law tradition , enshrined in published law. It begins with the Estatuto de Autonomía para Asturias (Ley Orgánica 7/1981, de 30 de diciembre), the founding document of post-dictatorship Asturias as a political entity. It states, in Article 16 quoted at the beginning of this page:

The Principality of Asturias will promote the preservation and compilation of Asturian common law.Translation my own.

It took quite a while for the government to get to the “compilation” part of that article. The work that would result in the Compilación del derecho consuetudinario de Asturias, began on 27 July, 1999 under the direction of Ignacio Arias Díaz, a former lawyer of the Junta General. Published in the Boletín Oficial del Principado de Asturias (BOPA) on 9 March 2007, it enshrined in settled law the traditional customs and arrangements of life in the villages of Asturias.

This really extraordinary document covers a breathtaking range of topics, from the types of enclosures allowed on common land (to keep cattle in one area or to corral acorns falling from trees) to the responsibilities of the joint owners of walls and the maintenance of common land by common labor and who can call for that labor to be done.

The most important parts deal with either usufructuary rightsProperty rights come in three types: usus, fructus, and abusus or the right to use, profit from, and destroy or dispose of. Usufructus combines the first two, and excludes the third. It is a way to allow another to use and profit from one’s property without extending to them the right to permanently alter or dispose of it. Stated another way, under usufruct, ownership is 2/3 of the law. or lands held either pro indivso or en mano común. Mills, water rights, communal forests

The reasoning of the law in the Compilación del derecho consuetudinario de Asturias quoted at the beginning of the article is translated as:

…the Asturian people, who with the repetitive and reiterative act over the centuries originated the opinion juris sive necesitatis, that is, the teleological element of the custom, the legal conviction that this act produced legal consequences.Translation my own.

The important part of this statement is the phrase opinion juris sive necesitatis. Article 38(1)(b) of the Statute of the International Court of Justice succinctly summarizes the concept thusly “Not only must the acts concerned amount to a settled practice, but they must also be such, or be carried out in such a way, as to be evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it.” By appealing to opinion juris sive necesitatis, the state is enshrining that because the people of Asturias have always considered these customs to carry the weight of reciprocal rights and responsibilities, they now do so, and pass from custom to law.