Regulation of Fundamental Rights in Spanish Law
Only the law can regulate the rights recognized in the second chapter of Title I of the Spanish Constitution. Not even the legislature can regulate absolute discretion with fundamental rights.
The Constitution binds the legislature to respect the essence of these rights, an obligation which constitutes an additional guarantee to the reservation bill.
This obligation imposes a limit on the developer, who can legislate constitutionally, but cannot do so in a way that makes the right ineffective.
The problem lies in defining the contours of the essence of a right, a question of respecting the specific right. There is a minimum core from which the legislator can operate. The delimitation of the minimum core will consider what the minimum condition is to affirm the subsistence of the right to freedom and the possibility of exercise.
The notion of the essential content of fundamental rights is predominantly casuistic. We must be clear about the content of each constitutionally recognized right to determine whether the development respects or not the substance of it.
To make this determination, two criteria are taken into account:
- The substance must be recognized by the legal category to which it corresponds.
- Locate the interests whose protection is being pursued with the recognition of law.
The Constitutional Court (TC) has indicated that both approaches are complementary.
The exercise of fundamental rights is subject to limits beyond which it is illegitimate.
Two types of limits can be established:
- Internal boundaries: These are those that define the content of the right. They constitute the frontier the legislature shall be fixed by the court. The correct path is to control and be adequate to the demands of changing social realities.
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External constraints: These are those imposed by the legitimate exercise of the rights and ordinary fund. Here we can find two types:
- Express Limits: The Constitution recognizes many requirements in Title I that can be established with a general or specific character.
- In general: The Constitution sets a limit. The exercise of the rights of others presupposes the collision of the right by different persons.
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For a particular case: The Constitution establishes:
- Public Order: limited to the manifestation of religious freedom, ideological and worship.
- Crime in flagrante delicto confined to the inviolability of the home.
- The rights recognized in Article 20.1 of the Spanish Constitution (freedom of expression, production, creative writing…).
- Social function: limits the right to property.
Implicit limits: The TC has indicated that the implicit limits must always be based on constitutionally protected property.
Fundamental rights sometimes conflict or collide with each other. The resolution to these conflicts is not easy, as neither the legislature nor the judiciary use general approaches, but formulas “ad hoc” valid for a specific law.
The German TC tries to get an approximation to these conflicts: PRAKTISCHE KONKORDANZ.
This is to avoid giving priority to one right over another, since all are equally valuable.
But this solution is not always feasible, since in some cases it is necessary to give preference to one right over another to resolve the dispute in question.
The distinction between the core and peripheral content may be an alternative to solve conflicts. It will be a culling criteria when the peripheral right collides with the substance of another fundamental right.
Also, we take into account the fact that some fundamental rights have a reflection on others. If a right is protected indirectly by another, this will be sacrificed in exceptional circumstances.
We can conclude by saying that our recent legislation does not contain an explicit solution for cases of disputes over fundamental rights.