Public and Private Law: Branches, Principles, and Spanish Legal System

Posted on Dec 9, 2024 in Law & Jurisprudence

What Does the Law Act On?

The law acts on the relationship between individuals and the State, both public and private. It is divided into branches or legal disciplines. Originally, damages resulted in the subjugation of the body or financial compensation. When the people’s power over individuals began to dominate, two situations arose:

Crimine: Judges can punish the most serious offenses (treason, murder, etc.).
Delicto: These remain in the private sphere of personal injury or marriage.

They are distinguished by the relationships between these individuals and the state: public law and private law.

Conceptions Through History

Rome: According to Ulpian, public law is that which respects the state and the republic, while private law regards the utility of individuals. According to Livy, the law of the Twelve Tables was the source of all law, both public and private (Fons Omnis Publicce Privatique Iuris).
Middle Ages: The notions of political power and patrimonial rule were confused. The principles of hierarchy, equality or parity, and subordination were set out.
Renaissance: New theories arose from the division of law. Donellus sought to apply Ulpian’s definition, dividing the rules according to their public or private utility. A century later, Domat divided it into the law of nations (between peoples), private law, private trade, and public law (on the militia and sovereign finance).
Contemporary Age: A struggle between the liberal and interventionist tendencies saw the prevalence of either law. With the ideas of the Revolution, the primacy of the innate rights of man was claimed against the state. Public law was reduced to supporting state standards, while the system constituted the foundation of individual rights and freedoms. Later, with increased legislative activity, the law did the same for public law, according to D’Ors.

Theories on this Distinction

Dualists: Explain the division in response to the subject.
Subjectivist: Response to the object.
Pluralistic: Based on the form. Regardless of these, the relationship is considered to be governed by public law when the state intervenes as the supreme body under its sovereignty. Private law applies when the State or the individual litigates on an equal footing.

Branches of Public Law

Political Law and Constitutional Law

Political law deals with laws and principles governing the state. It comes from the Greek Polis, also adopted in Rome as the polis or city-state. According to J. Bodin, the rule is configured based on three elements:

The territory or geographical area.
The people who inhabit it.
Sovereignty (regardless of the exercise).

The term “nation” comes from the Latin Nati. The Constitution of 1978 introduced the term “national” for traditional regions.

Constitutional law studies the Constitution as a stable structure in which the State and the Government are organized (the law of laws). The theory of separation of powers originated with Montesquieu in his book The Spirit of Laws (18th century). It proposes three branches:

Legislative: Its mission is to develop laws and resides in parliaments or courts.
Executive: Implements or enforces the laws and directs policy and public administration.
Judiciary: Its function is the interpretation and enforcement of laws by judges and courts, acting as an independent and impartial body.

The three branches are controlled reciprocally, but especially the legislative and the judicial control the executive.

Article 1.1 of the Spanish Constitution: Spain is a social and democratic state of law that holds as superior values of its legal order freedom, justice, equality, and political pluralism.

Article 1.2 of the Spanish Constitution: National sovereignty resides in the Spanish people, from whom emanate the powers of the state.

Section 66 and others of the Spanish Constitution: The Cortes Generales represent the Spanish people who choose them and are formed by the Congress of Deputies and the Senate. They exercise the legislative power of the State, approve their budgets, control the action of the government, are involved in the appointment of its President, and may exercise a vote of censure against him.

Territorially, the State is organized into municipalities, provinces, and autonomous regions (there are 17). The Government organizes public services using the administration, a bureaucratic organization addressed by it.

Article 97 of the Spanish Constitution attributes to the Government a dual function:

To represent and lead the Nation’s policy in the name of the popular will.
Organizational and administrative support to serve the ends of the community.

Public administration is a body with legal personality and is regulated by a special branch of law called administrative law.

Administrative Law

Public Administration includes:

The Administration of the State in its various grades and hierarchies.
The Administration of the Autonomous Communities.
The local authority of municipalities and provinces.
The corporations and public institutions under the control or custody of the State or under this government.

The Administration has supremacy over the citizen; the common interest prevails over the individual. Against this, the citizen has certain guarantees:

Economic Guarantees: Economic injury to the citizen may be compensated (e.g., expropriation with fair price).
Legal Guarantees: Hearing of the interested party in the procedure and a system of appeals before the administration (administrative) and litigation-administrative (court).
Administrative Appeal: Before the organ that issued the decision.
Appeal of Appeals: To the hierarchical superior.
Special Appeal: Such as the cassation appeal.

Financial, Tax, and Fiscal Law

The law that deals with state income and expenditure and taxation is one of the most important branches of public law. There are three specialties:

Financial Law: Rules governing the management and expenditure of state revenues and the public. These measures should be in the law to allow control of public funds.
Tax Law: Rules governing the imposition and collection of taxes. Also includes the duties of taxpayers and their guarantees.
Fiscal Law: Rules that establish state taxes.

Criminal Law

Criminal law is the set of public rules defining crimes, attributing to them the corresponding penalties, and governing other security measures. In the 18th century, liberal currents defended two principles:

The primacy of legal certainty.
The moderation of punishments.

It intends to eliminate capital punishment since it is the only irreparable one. From the above, we derive the following principles:

No penalty may be imposed if not provided by law (nulla poena sine lege).
Criminal laws are non-retroactive.
There is no offense other than the fact defined as such before its commission (nullun crimen sine praevia lege).
Sentencing rules must be interpreted restrictively.

Crimes are studied in the person of the offender and his social environment; this is the concern of Criminology. Penalties are divided into:

Imprisonment.
Restriction of freedom.
Restriction of rights.
Pecuniary.

Procedural Law

Procedural law is the system that regulates the process, which is a legally regulated sequence of events developed before the bodies of the judiciary. It begins with the exercise of action and leads to the sentence. In Roman law, action and law are two aspects of one reality; that is why there is a system of actions.

Jurisdiction (Iurisdictio of Ius Dicere, declaring the law) is the activity of judicial bodies designed to settle disputes by applying the law.

Section 117.1 of the Spanish Constitution: Justice emanates from the people and is administered on behalf of the King by judges and magistrates of the judiciary, who are independent, irremovable, liable, and subject only to the rule of law.

Section 117.5 establishes the principle of jurisdictional unity as the basis of the organization and functioning of the courts.

Types of Jurisdiction

Civil Jurisdiction: Pronounces judgments in private law matters. The civil process is governed by the Law of Civil Procedure of February 3, 1881.
Penal or Criminal Jurisdiction: Involved in criminal cases for criminal conduct. Regulated by the Law of Criminal Procedure of September 14, 1882.
Contentious-Administrative Jurisdiction: Its competence is the disputes in which the Administration is a party.
Employment Tribunal: Deals with disputes in labor relations.
Military Jurisdiction: Deals with crimes committed by military personnel.
Canon or Ecclesiastical Jurisdiction: Deals with marital causes or disputes between Catholics; its code dates from January 25, 1983.

Civil and criminal proceedings are the subject of scientific study. Civil proceedings are classified as:

Regular: Governed by general procedural rules.
Special: Governed by special procedural rules.

Public International Law

Public international law governs actions between States and between agencies and organizations of a supranational nature. In Rome, there was an international law called the law of nations (ius gentium). In the Christian world, respect for a Christian community of nations and a law of nations based on the authority of the Pope motivated him to determine right or wrong about war.

The existence of a binding international law for nations is a modern conquest. It was born of the uses and customs in the 19th century and was consolidated with the appeal of arbitration between States. For conflict resolution, two forms are established:

Non-Judicial Form: Through diplomatic relations or within international organizations.
Judicial Form: Through the intervention of international courts of justice.

The most important international organization is the UN, established by the Charter of San Francisco in 1945.

Branches of Private Law

Civil Law

Historically, civil law coincides with private law. It regulates relations between citizens, having a large content from which various fields and subjects have been spreading. In Rome, the Ius Civile was the Law of the citizen and was formed by the work of Interpretatio of jurists. On the other hand, as opposed to the Ius Gentium and of course, according to Gaius, the law states that each people establish for themselves.

Private International Law

Private international law governs conflicts of law and jurisdiction between courts of different countries regarding relations between individuals of different nationalities. The solutions are many:

Allowing the judge to take account of foreign law.
Instructing a foreign judge to resolve a particular case (exhort).
Other laws dictate rules depending on the subjects concerned.

In Spain, due to the existence of nationalities, conflicts between them impose a law regulating interregional relations.

Labor Law

Labor law regulates the provision of productive work done by self-employed individuals. The employment contract is between the employer and employee as remuneration for services. Traditionally, the provision of services was included in the civil contract of lease of services due to the prevailing freedom of the parties. Following workers’ demands, special legislation on the employment contract was born in the 19th century, which ended in a discipline and a special jurisdiction to deal with problems between employers and employees.

Of particular importance is the collective agreement. It consists of a negotiated contract that governs the working conditions in a particular productive sector.

Canon Law

Canon law is the law of the Catholic Church as an organized community of believers. Three issues can be identified:

Its Importance and Historical Significance: In Roman law, it formed the common law, Ius Commune, Ius Utrumque, which governed the Western Christian empire. The rules and principles of this law have become part of European rights.
As Ecclesiastical Law or Statutory Law of the State: Regulates Church-State relations. The agreement between the two is called the Concordat.
As Matrimonial Law: Regulates the procedure and purpose of marriage between Catholics. The judgments of its courts in matters of nullity and separation have civil effects.

It follows the principle of the supremacy of private initiative and autonomy in the liberal society of the codifications of the 19th century. Currently, it is in crisis due to the invasion of public law and because many of its disciplines have acquired a public character (commercial, aeronautical, mortgage, etc.). The principle of autonomy, which inspired the scheme of assets, property, contracts, and inheritance, is subordinated to the interests of the community.

Civil law generally regulates the juridical circumstances of the person from birth until death. The content of civil law was divided by Gaius into three groups: people, things, and actions. Savigny divides it into five:

General part.
Real rights.
Obligations.
Family.
Succession.

This plan is adopted by the German Civil Code and is more common in the literature. The Spanish Civil Code of 1889, enacted during the regency of Maria Cristina, consists of 1976 articles distributed in:

A preliminary Title: On the legal rules and their effectiveness and application.
Four Books: About the people, goods, property and their amendments, acquisitions of property, obligations, and contracts.

Some regions have special civil rules, called Regional Law. It is enacted in foral compilations, written from 1959 to 1973.

Article 149.1 of the Spanish Constitution reserves exclusive jurisdiction of the State as civil legislation, without prejudice to the preservation, modification, and development by Autonomous Communities of civil rights or special foral rights where they exist.

Additional Provision 1 of the Spanish Constitution states that it protects and respects the historical rights of the foral territories. The general updating of the Foral regime will be carried out, where appropriate, within the framework of the Constitution and the Statute of Autonomy.

Commercial Law

Commercial law was established as an independent discipline of civil law in the 19th century, although historical precedents are often found in statutes and practices of corporations of merchants of the High Middle Ages. In Rome, there were also powerful corporations of merchants and shipowners. It has experienced great development in this century due to the passage from the liberal notion of the merchant to that of the business.

In the objective sense, acts of commerce are those traditionally known as commercial operations and are governed by the Commercial Code, whether or not they are performed by merchants.
In a subjective sense, which is currently still in force, commercial law is considered to be that which regulates the professional activity of entrepreneurs.

The field of commercial law is broadly regulated by the Commercial Code of 1885. The structure of business organization is based on three concepts:

Entrepreneur: The owner of the company, subject to the rights and obligations arising from the business.
Business Activity: Those economic activities, organized and professional, aimed at the production or exchange of goods and services for the market.
Commercial Establishment: The set of goods and services that are the heritage of the company.

The legal status of the company has special significance because the most used associative form is the corporation. This is a capitalist society with limited liability and shares, whose last adjustment was made by decree on December 22, 1989. There are other types of companies: collective, limited partnership, and limited liability.