LA DOCTRINA DE BENTHAM Y EL SISTEMA REGISTRAL DE SEGURIDAD JURÍDICA.

Abstract

The great legal challenge of the twenty- first century is the introduction of a jus novum universale, some perfect blend of continental European law, which draws heavily on Roman inspiration, and Anglo-Saxon common law, with its ancestral pragmatism, yet without losing sight of the practicality espoused by Jeremy BENTHAM, who inspired a nineteenth-century legal utilitarianism that still persists.
The new law, whose primordial function is to be useful, should reject misleading fallacies, but it is built upon a platform of useful fictions, which, like some kind of legal engineering, is constantly spewing out new constructions under the broad spectrum of the concept of «law», even in the realm of registrable rights, which is no longer limited to strictly in-rem rights and may even encompass fictitious properties (services and concessions) and eventually create singular ideal rights (such as urban development rights) of great economic value but appearing only in publicity disclosed by the registration system, which renders possible the «fiction » of their knowability by all and gives them, ex lege, the presumption of being the «official truth». A law of jurists, and not just of laws and judges, whose resolutions and decisions must express the general feelings of society. And without ignoring historical background, from the standpoint of the primacy of the law we must advocate a pragmatic interpretation to strengthen individual actions in a framework of legal certainty. Legal certainty must hold the topmost place among the new law's goals; thus its variation, certainty in trade, serves as the foundation for modern, highly technically developed, legally protective title registration systems, where efficient publicity and the objective meaning of written terms trans form an act executed between private parties into a public act, which ceases to be a time and appears as timeless, and therefore may be useful for determining future decisions and preserving optimum situations. The joint fiction of registration publicity and authentic documentation entails the acknowledgement of the principle of «the registrar's power to attest documents» as an «asset» whose base is built of certainty, legality and publicity, and which enjoys constitutionally supported «effective legal protection». Legal language itself, even in registration entries, should facilitate comprehension and application. And although scientific technology and globalisation rule in advanced societies, Justice, in all its forms, including the Objective Justice that operates in registrars' scrutinies of documents, must be handed out with the highest degree of ratiocination, preventing over-computerisation from dehumanising legal activity. In Spanish mortgage law, one example of «Benthamian» utilitarianism can be seen in the institution of the mortgage, which currently functions not only as a securing right, but also as an autonomous right and an economic asset in itself: «mortgage credit», as just another fictional creation.