Sources and Hierarchy of Law in the Spanish Legal System

Posted on May 30, 2024 in Law & Jurisprudence

ITEM 4: SOURCES OF LAW

1. Sources and Determination

When discussing law, we can refer to its origin (e.g., natural law), its means of knowledge, or its means of production. This section focuses on the sources of law, exploring how legal rules are created and implemented.

The Production as Organ Sources

While the General Council of the Judiciary shouldn’t create law, it influences legal interpretation through judgments. The state creates law through:

  • Legislative decrees
  • Executive orders issued by the government and awarded by courts in urgent cases (requiring parliamentary approval within 30 days)

European conventions also influence Spanish law. Additionally, the legislature creates laws, and citizens have legislative initiative through petitions with 500,000 signatures (excluding constitutional matters).

Customary law, if not illegal, also plays a role. Normative conventions arise from agreements between employers and workers. Historically, lawmaking was dominated by monarchies, while customs were established by feudal lords. The French Revolution shifted this dynamic, with the revolutionary state and bourgeoisie emphasizing codified law over traditional customs.

Identifying sources of law reveals a state’s political and social traditions. The primary sources of law are:

  1. General principles of law
  2. Law and custom
  3. Jurisprudence (case law)

Modern legal systems, however, often prioritize codified law and relegate general principles to a supplementary role. The Spanish legal system is characterized by pluralism, encompassing laws, decree-laws, legislative decrees, customs, and general principles. In cases without specific regulation, equity (fairness) and analogy (applying similar provisions) prevail.

2. Formal Sources and Hierarchy in the Civil Code

The hierarchy of legal sources is outlined in Article 1 of the Spanish Civil Code (restored between 1973-1974). Key takeaways include:

  • The Civil Code lists but doesn’t create sources of law.
  • International treaties published in the Official State Gazette (BOE) are recognized as a source of law.
  • Local customs must be proven and not contradict existing law.
  • General principles of law provide guidance and interpretation.

Fundamental Guidelines

Article 1’s last paragraph emphasizes the judge’s duty to adjudicate. While analogy can bridge legal gaps, judges cannot disregard existing laws. The Spanish legal system acknowledges that legislation cannot foresee every situation.

Custom, as a subsidiary source, applies when no specific law exists. Article 3.2 highlights the role of equity in cases without clear regulation. Article 4.1 introduces analogy, allowing for the application of similar provisions. General principles of law serve as a last resort, informing the entire legal system.

Principles Governing the Application of Legal Sources

  1. Principle of Hierarchy: Law takes precedence over custom, followed by general principles.
  2. Principle of Judicial Precedent: Court decisions influence legal interpretation.
  3. Principle of Supremacy of Law: Written law prevails, ensuring legal certainty.
  4. General Principles of Law: These supplement and inform the legal system, guiding interpretation and filling gaps.

3. Law: Concept, Types, and Application After the Constitution

Law is defined as the legal standard established by bodies granted legislative power by the Constitution, namely the Parliament and Legislative Assemblies of the Autonomous Communities (Article 66.2).

The Spanish Constitution doesn’t provide an exhaustive list of matters requiring regulation by law. However, it frequently references the regulation of fundamental rights and freedoms through law. The Constitution distinguishes between two types of laws:

Organic Laws

These address matters of particular importance, such as fundamental rights, Statutes of Autonomy, and the general electoral system. Their approval, amendment, or repeal requires an absolute majority in Congress.

Ordinary Laws

These govern matters not reserved for organic laws and are approved by a simple majority in legislative chambers. Both the Parliament and legislatures of the Autonomous Communities can enact ordinary laws. Conflicts between ordinary and organic laws are resolved based on the principle of competence, with the Constitutional Court ensuring each law remains within its designated scope.

Intrinsic Characteristics of Law

  • Rationality
  • Mandatory nature
  • Generality

Extrinsic Characteristics of Law

  • Publication
  • Enactment

Process of Drafting Laws

  1. Legislative Initiative: This can be initiated by the government, Congress, Senate, Autonomous Communities, or citizens (through petitions with over 500,000 signatures for specific matters).
  2. Parliamentary Process: Bills are discussed and voted on in the Congress of Deputies. If approved, they are sent to the Senate for further debate and voting. The Senate can propose amendments or vetoes, which are then reviewed by Congress. The final decision rests with Congress.
  3. Royal Assent: The King’s signature, a historical formality, signifies approval.
  4. Promulgation: The King certifies the law’s validity.
  5. Publication: The law is published in the BOE, taking effect on the date specified or after a 20-day vacatio legis period.

Rules Within the Concept of Law

Constitution

The Constitution is the supreme law of the land, consisting of 169 articles. It outlines fundamental rights and duties, the structure of the state, and the legislative process. Articles 166 to 169 detail the amendment procedure.

Organic and Ordinary Laws

As previously mentioned, organic laws address fundamental rights and require an absolute majority for approval. Ordinary laws cover other matters and require a simple majority.

Executive Power Laws
  • Legislative Delegation (Article 82): Parliament can delegate limited legislative power to the government through an Act of Bases (for complex matters) or an ordinary law (for consolidating existing legislation). This delegation must be explicit, time-bound, and subject to parliamentary oversight.
  • Emergency Legislation (Article 86): In urgent situations, the government can issue temporary decree-laws, which cannot affect fundamental rights, institutions, or the electoral system. These decrees must be submitted to Congress for ratification or repeal within 30 days.
Provisions Below the Rank of Law

These include decrees, ministerial orders, and regulations for autonomous bodies. They are generally issued by the executive branch to provide detailed rules for implementing laws. These regulations cannot contradict existing laws.

In conclusion, the Spanish legal system is characterized by a hierarchical structure of legal sources, with the Constitution at its apex. Understanding this hierarchy and the different types of laws is crucial for navigating the complexities of Spanish law.