Applying Spanish Law: A Guide to Legal Sources and Interpretation
Chapter 5: Applying Spanish Law
The Sources of Law
According to Article 1.1 of the Spanish Civil Code, the primary legal sources are state law (written standards originating from the legislature), custom (unwritten law derived from social habits and practices), and general legal principles.
Customs are considered only in the absence of applicable law and must be proven. General principles of law are applied when there is no applicable law or custom. These serve as the foundation of legal rules, according to legal scholar De Castro.
Examples of General Principles of Law:
- Nobody can contradict their own actions.
- Nobody can be condemned without a hearing.
- Nobody can invoke the breach of an agreement they themselves have violated.
How to Apply the Law
Law originates from an act of authority. Judges apply the law using their power of jurisdiction, which involves interpreting legal precepts. If a precept’s wording is insufficient, the judge may need to integrate or extend it by consulting other rules or principles. This requires ongoing collaboration between judges, legal scholars, and practitioners.
The Law and Legal Studies
Lawyers interpret and apply the law, making it their theoretical object of study. In ancient Rome, lawyers, motivated by duty (officium) rather than profit, performed functions such as responding to legal cases, advising on legal actions, and providing legal models.
The acts of Roman jurists and medieval commentators were primarily practical. Scientific law emerged during the Renaissance. Later, Savigny distinguished between practical law and the scientific study of law by professors.
The modern lawyer’s main functions include providing initial consultations, assisting in drafting legal documents (sometimes requiring a notary), assisting in administrative and tax courts, and advocating in criminal, civil, administrative, and labor courts.
Open and Closed Legal Systems
Legal systems are categorized as open or closed:
- Open: Case law-based systems are continuously evolving (e.g., common law).
- Closed: Codified law systems (e.g., Continental Europe).
Roman law, with its creative jurisprudence and written codes, underpins both systems. Royal codes inspired by Romanistic Pandects law led to the European Civil Codes, such as the Spanish Civil Code of 1889, the German BGB of 1900, and the Swiss Civil Code of 1910.
English and American Law: A Prototype Open System
This system contrasts legal statutes with common law (judge-made law) and equity, employing a continuous process of case law. Common law, applied by judges, is considered a superior legal system.
Sources of Spanish Law
Article 1.1 of the Spanish Civil Code identifies the legal sources as law, custom, and general principles of law. These sources apply to private law, but not necessarily to all branches of public law.
Article 1.3 specifies that custom is considered only in the absence of applicable law and cannot contradict the law (contra legem).
State Law and Written Norms
These are distinguished by their origin (the legislature) and specific formulation requirements. Law is also distinct from custom in scope, effectiveness, and its generic and universal nature.
Custom
Custom is a social practice that informs legal decisions and rules. It is classified by its relationship to the law:
- According to law (secundum legem)
- Outside the law (praeter legem)
- Against the law (contra legem)
Spanish law only permits custom in the absence of applicable law (praeter legem). According to Article 1.3, custom must meet these requirements:
- Apply only in the absence of applicable law.
- Not contradict morality or public order.
- Be proven.
General Principles of Law
Article 1.4 states that general principles of law are applied in the absence of law or custom. De Castro classifies these principles as natural law principles, traditional national principles, and political principles.
Jurisprudence
Jurisprudence refers to the criteria used in legal decisions. It indicates the case law of judges and courts. In open systems (common law), judges create rules and principles that bind subsequent judges. In closed (codified) systems, the judge primarily interprets the law.
Articles 1.6 and 1.7 state that jurisprudence, complemented by legal doctrine established by the Supreme Court, guides the application of law, custom, and general principles. Court rulings can be appealed. Appeals to the Supreme Court are called cassation appeals.
Interpretation of Law
Legal interpretation clarifies the meaning of law in a specific case. There are two types:
- Interpretation of law (interpretatio iuris): Inquiry into the law applicable to a situation.
- Interpretation of a specific law (interpretatio legis): Clarifying a law’s scope and content.
Historically, interpretation also applied to private agreements (lex privata) and the parties’ statements and actions (e.g., interpreting a will). With the Napoleonic Civil Code, law became the primary source, and legal experts focused on interpreting it.
Two theories of interpretation exist:
- Subjective theory: Focuses on the legislator’s intent (mens legislatoris).
- Objective theory: Focuses on the law’s actual text.
Article 3.1 mandates interpreting rules according to their wording, context, historical and legislative background, and the social reality of the time, adhering to the spirit and purpose of the law.
Interpretation criteria include grammar, logic, historical-evolutionary context, and teleological (purpose-driven) considerations.
De Castro distinguishes between authentic interpretation (by the legislator), usual interpretation (by judges and courts), and doctrinal interpretation (by legal scholars).
He further categorizes interpretations as literal, declarative (broad or strict), and corrective (extensive, restrictive, or repealing).
The Supreme Court traditionally applies grammatical, logical, analogical (a maiori ad minus, a minori ad maius, a contrario), reductio ad absurdum, teleological, and historical-sociological criteria.