Fundamental Rights in the Spanish Constitution: A Comparative Overview
Fundamental Rights in the Spanish Constitution
It is generally accepted that the Constitution comprises rules that regulate the organization and exercise of State power, on the one hand, and the relations between the State and its citizens, on the other.
The rules that stipulate and regulate the relations between the State and its citizens and, more generally, the relations between the controlling and the controlled are characterized as public freedoms or fundamental rights or human rights.
Fundamental rights determine the percentage of freedom that the members of a certain society have in relation to State power, thus delimiting the size of self-existence and self-determination of every human being.
It would also be useful to clarify that fundamental rights, when formulated in the Constitution, have increased formal power. This means that they cannot be abrogated or changed by a formal law or any regulatory deed of the executive power, but they lay down the limits and the legal framework within which State agents should act as regards their relations with the citizens. In this sense, fundamental rights have an interdisciplinary legal character, since they lay down the principal rules of administrative law, criminal law, labor law, civil law, as well as overall procedural law.
Individual rights acquire legal substance not because they are based on “divine intention” or “proper discourse” or “human nature”, but because they are the products of an applicable Constitution that determines the beneficiaries and the protected interests. The rights are an ascribed legal ability; therefore they require a (positive) law and state power, which effectively imposes the protection of the established rights.
Distinction of Fundamental Rights
The term “fundamental rights” means the ability awarded by applicable laws to satisfy interests relating to the exercise of State power, as long as there is an individual on the one side and a State power agent acting in this dominant capacity on the other.
Fundamental rights include individual, political and social rights.
- Individual Rights: These are fundamental rights with negative content, which ensure the legal status negatively and establish a claim for abstention of State power (status negativus).
- Political Rights: These are fundamental rights with active content, which establish a claim for participation of the holder in State power (status activus).
- Social Rights: These are fundamental rights with positive content, which establish a claim for the provision of certain services and a claim for financial provisions (status positivus).
However, the above classification of fundamental rights is schematic and relative because the three types are supplementary to each other, since they mutually affect the protection and exercise thereof.
Classification of Rights and Liberties
The history of human rights may be divided into three main phases, referred to as the rights of the first, the second, and the third generations. For the purposes of the following paper, I will confine myself to a discussion of the rights of the first and second generation in relation to the Spanish Constitution.
First Generation Rights: Human rights of the first generation were declared in the great democratic revolutions at the end of the eighteenth century in the United States and France. Their focus was on individual civil and political rights with a view to guaranteeing both private liberty and democratic participation. The German jurist, Georg Jellinek, labelled these rights respectively as the “status negativus” and the “status activus.”
- Status Negativus: The rights of the negative status have a defensive character. Their goal is to prevent governmental violations of life, liberty, and property. In exceptional cases in which the state is allowed to restrict these rights, procedural provisions such as the guarantees of “habeas corpus” bind it.
- Status Activus: The rights of the active status, of participation in the political process, entail freedom of speech, assembly, association, and democratic suffrage.
Second Generation Rights: The second generation arose during the nineteenth century when the focus shifted to social rights, Jellinek’s “status positivus.” The idea of a positive status was the result of the problems encountered in the industrial revolution. Economic and social rights were designed to help overcome increasing impoverishment and proletariatisation of substantial numbers of the population – in simpler terms it may be described as the status of being able to make demands from the state.
Examples of Rights in the Spanish Constitution
Status Negativus (Division 1 of Chapter 2)
- Freedom of Ideology, Religion and Beliefs (Art. 16)
- Individual Freedom and Security and Habeas Corpus (Art. 17)
- Right to Reputation, Personal and Family Privacy and to One’s Own Identity (Art. 18)
- Right to Freedom of Choice of Place to Live (Art. 19)
- Freedom of Expression, Freedom of Knowledge and Right to True Information (Art. 20)
- Freedom of Association (Art. 22)
- Right to Form Trade Unions (Art. 28)
- Right of Petition (Art. 29)
Status Activus
- Right of Assembly and to demonstrate (Art. 21)
- Right to Universal Suffrage and to Hold Public Office (Art.23)
- Right (and duty) to defend Spain (Art. 30)
- Duty to contribute to a tax system which is established according to the principles of equality and progressiveness (Art. 31)
Status Positivus
- Right to Obtain Effective Protection by the Courts and Right of Access to the Courts (Art. 24)
- Right not to be Punished where there is no crime (Art. 25)
- Protection of Reputation (Art. 26)
- Right to Education and Instruction (Art. 27)
- Right to health protection (other parts of the Constitution)
- Right of access to culture (other parts of the Constitution)
With that in mind, let us move on to discuss the fundamental rights and civil liberties guaranteed in the Spanish Constitution and how they compare to the constitutional traditions of other civil law countries. A brief discussion of the history and creation of fundamental rights in Spain helps us understand the governmental methods of the regulation of their exercise or their restriction and crucially not only how they are similar but also why they are similar to other civil law jurisdictions.