Sources of Law in the Spanish Legal System
Sources of Law in the Spanish Legal System
What is meant by the term “Source of Law”?
Material source of Law: Origin of the rules of law (Parliament). In this sense, Parliament would be a “source of law”, because the “leyes” are enacted by the Chambers of Parliament.
Formal source of Law: Origin or exteriorization of Law. Rules that constitute the Law (law “ley”, customary laws “costumbre”, and General Principles of Law “Principios Generales del Derecho”).
Spanish Constitution (SC): Supreme law of the legal system
- The Constitution is the supreme law and takes precedence over any other class of law. It is the Law of Laws and the hierarchic summit of the legal system.
- When a norm is contrary to the Constitution, it will be declared unconstitutional by the Constitutional Court.
- The SC contains 169 articles.
- Art. 1.1: Spain is hereby established as a social and democratic State, subject to the rule of law, which advocates freedom, justice, equality, and political pluralism as the highest values of its legal system.
Spanish Constitution Structure:
- 1st part: (arts 1-55) Basic constitutional principles, fundamental rights, and duties.
- 2nd part: (arts 56-156) Powers of the State, Crown, Houses of Parliament (Cortes Generales), Judicial Power, Government, Administration, territorial organization of the State, and Constitutional Court.
- 3rd part: (arts 166-169) Constitutional Amendment.
- The SC divides the powers into: legislative, executive, and judicial, and establishes the different Laws.
1. The Law: Different Types of Laws
- General meaning of “Law” = Legal Norm.
- The “Law” in the strict sense = written rule of law created by the state within its legislative competence.
- Ley orgánica: They are a special type of statute required by the Constitution for the regulation of certain matters, subject to special requirements for the procedure of elaboration, approval, modification, and derogation (absolute majority)… (half plus one).
- Ley ordinaria: Ley is the rule of law approved by Parliaments (=legislative organ of the Nation and of the Autonomous Communities). The adoption of leyes ordinarias requires a simple majority.
- For example: Ley 12/1999, of 15 December, of Tourism, of the Regional Government of Andalusia (Junta de Andalucía).
Regulation having force of Ley:
- Decreto-ley: In cases of urgency and extreme need, the Executive has the power to introduce rules that have the force of ley. The validity of this type of legislation is therefore conditional on the ratification or rejection by Congress within one month.
- Decreto-legislativo: Parliament delegates its legislative power to the Executive. In the first instance –textos articulados– Parliament dictates a ley de bases fixing the principles, criteria, object, limits, and scope of the delegation and the text that will be created. The second instance is the authorization for consolidating legislation that already exists but is scattered.
Reglamento: Hierarchically inferior to “la ley”, normally develops a “ley” and regulates in detail its content.
International Treaties and Community Law (European Union Law):
- Los Tratados Internacionales: International treaties are automatically incorporated into the Spanish legal system once they have been duly signed and ratified.
- Community Law: It is the Law of the European Union.
- Primary Law (Derecho originario): Treaty of Rome…
- Secondary Law (Derecho derivado):
- Community Regulations (Reglamentos comunitarios): Regulations are normative acts. They have general application, are binding in their entirety, and directly applicable in all Member States.
- Directives (Directivas): A directive is a legislative act of the European Union, which requires member states to achieve a particular result without dictating the means of achieving that result.
2. Customary Laws (La costumbre)
- Custom (costumbre) is the second source of law after the “ley”:
- Art.1.2 Cc: “Customs shall only apply in the absence of applicable statutes, provided that they are not contrary to morals or public policy and that it is proven.
- Concept:
- Customs are non-written law and they do not originate from the State but from society. This second characteristic, however, necessitates the continuous practice of the custom by the social group that has created these rules.
- Types:
- Secundum legem: Customs that interpret a legal or customary rule according to the law.
- Contra legem: Are excluded by art.1 CC because customs are only operative in the absence of legislation, never against it.
- Extra legem: Customs that regulate situations for which there is no written legislation = Source of Law.
Customs and Legal Uses (Usages):
- Legal uses:
- art. 1.3 Cc: “Legal uses that are not merely for the interpretation of a declaration of will shall be considered custom.
- Art. 1258 Cc: Contracts are perfected by mere consent, and since then bind the parties, not just to the performance of the matters expressly agreed therein, but also to all consequences which, according to their nature, are in accordance with good faith, legal uses, and the law.
- Uses of the traffic or trade usages: Refer to the continuous practice or behavior or conduct of a social group or sector that has created these rules (for example: hotels, banks…).
- They can be interpretative or normative usages. Normative usages can become part of the contract (integración del contrato).
- Not to be confused with the social uses (habitual social ways, for example, when two friends bump into each other, they usually shake hands).
3. General Principles of Law (Los principios generales del Derecho)
- General principles of law are the basic rules reflecting the convictions of a community. These general principles permeate the whole legal system.
- They are diverse:
- Constitutional principles: Liberty, equality, justice, legality… A good example is provided by the principle of equality, which is one of the fundamental values recognized by Art.1 SC and further developed in Art.14, which prohibits any form of discrimination. This principle informs all areas of the law, for instance, civil or criminal procedures have to respect it by granting to all parties to the proceedings equal opportunities.
- Art. 10 CE: The dignity of the person, the inviolable rights which are inherent, the free development of the personality, the respect for the law and for the rights of others are the foundation of political order and social peace.
Application of the General Principles of Law:
- Subsidiary function: Art. 1.4 CC: General legal principles shall apply in the absence of applicable statute or custom, without prejudice to the fact that they contribute to shape the legal system.
- Exception: When a General Principle of Law is in a Law, it is considered a General Clause and can be directly applicable by the Judge, for example: Best Interest of the Child General Clause, or Good Faith General Clause.
- Information function: They inform the other sources. In other words, general principles are used teleologically insofar as they are instruments of interpretation for the rest of the legal rules.
Complementary Sources: Case Law (La Jurisprudencia):
- Case Law:
- Large sense: Body of judgments or decisions of lower and upper courts.
- A decision is only binding on Parties (Plaintiff and Defendant). On the contrary, Law binds all citizens.
- Strictly sense:
- Art. 1.6 CC: Case law shall complement the legal system by means of the doctrine repeatedly upheld by the Supreme Court in its interpretation and application of statutes, customs, and general legal principles = Doctrine of Case Law.
- Supreme Court Ruling derived from an appeal, lodged to demand doctrine unification (Sentencia para la unificación de doctrina) = Doctrina Jurisprudencial.