Sources of Law in the Spanish Legal System

Posted on Aug 31, 2024 in Law & Jurisprudence

ITEM 2: SOURCES OF LAW

1. SOURCES OF LAW IN GENERAL:

1.1. THE CONCEPT OF SOURCES OF LAW

The term “sources of law” can be considered metaphorical, confusing, or even misleading. It refers to the origin from which law derives, encompassing two key aspects:

  • Who has the right to create laws?
  • What instruments are used to establish legal rules?

Therefore, there are two types of sources:

  1. Social Sources: Individuals or social groups with the power or authority to create rules that form the law. (This document will not delve into social sources.)
  2. Formal Sources: These establish the form of expression that the rules of a legal system assume.

Since the establishment of the liberal system, the question of authorship of legal rules often goes unnoticed, as parliaments hold a near-monopoly over other potential social sources. (However, this is a matter pertaining to the Philosophy of Law.)

This document focuses on the formal sense of the term “source.”

In the Spanish legal system, there are three primary sources:

  1. The Civil Code
  2. The Constitution
  3. The European Union legal system (due to Spain’s EU membership)

This is because the Spanish legal system’s development occurred in three distinct historical moments: the drafting of the Civil Code’s preliminary title, the adaptation to the 1978 Constitution, and the incorporation of Spain into the EU.

The Civil Code (CC) dedicates Article 1 to the system of sources. Article 1.1 states: “The sources of Spanish law are law, custom, and general principles of law.”

According to Professor Montés Penadés, this system has the following characteristics:

  • It preaches the absolute supremacy of statutory law.
  • It is conceptual rather than casuistic. (Rules are presented as theoretical propositions with attached legal consequences.)
  • The judicial function is limited to identifying, interpreting, and applying the law.

1.2. CONSTITUTIONAL REGULATION OF SOURCES

A. Supremacy of the Constitution

The first significant novelty introduced by the 1978 Constitution is its recognition as the supreme law of the land. It sits at the apex of the legal system.

Reasons for its Supremacy:

  • It establishes the principles of civil coexistence and the conduct of public powers.

Consequences:

  1. Direct application of fundamental rights (Article 9.1)
  2. All public authorities are subject to its terms.
  3. A difficult constitutional reform process.
  4. The Constitutional Court acts as the guardian of the Constitution.

Direct Application of the Constitution:

While constitutions often contain general principles, the Spanish Constitution also includes specific mandates that can be directly enforced in court.

Manifestations of Direct Application:

  1. Judges must interpret laws in light of the Constitution and can raise questions of unconstitutionality.
  2. Constitutional appeals can be filed against rules that violate the Constitution.
  3. Pre-existing laws conflicting with constitutional principles are repealed (e.g., partnership law adopted in 1964 and repealed in 2002).

Impact on the Source System:

The Constitution modifies the traditional source system in two ways:

  • Negatively: It eliminates rules that contradict it.
  • Positively: It influences the interpretation and enforcement of existing rules and determines the hierarchy of legislative acts.

Reconciling the CC and the Constitution:

  1. The term “law” in Article 1.1 of the CC should be understood to encompass all regulations permitted by the Constitution, including judgments of the Constitutional Court.
  2. Sources not explicitly mentioned in the Constitution (e.g., custom) exist only where permitted by law.
  3. Case law refers to judgments of the Constitutional Court, which have the force of law, and not to judgments of the Supreme Court.
B. Distribution of Powers

The Constitution introduces a new distribution of power between the State and the Autonomous Communities (AC), adding the principle of competence to the traditional principle of hierarchy.

  • Principle of Hierarchy: A lower-ranking rule is invalid if it contradicts a higher-ranking rule.
  • Principle of Competence: A rule is invalid if the issuing body lacks jurisdiction over the subject matter.

The Constitution outlines the exclusive powers of the State and the AC, as well as areas of shared competence.

2. THE LAW: THE MEANING OF THE EXPRESSION OF LAW

The CC refers to the law as a source of law in Article 1.1: “Sources of Spanish law are law, custom, and general principles of law.” Article 1.2 adds: “Provisions that contradict other higher-ranking provisions are ineffective.”

The term “law” can be understood in four ways:

  1. Broadest sense: Equivalent to “justice” or “correctness.”
  2. Broad sense: Equivalent to “law in force in a country.”
  3. More correct use: Refers generally to written rules (including regulations).
  4. Strict sense: Refers to a type of written rule with formal and material requirements (state or regional regulation):

Requirements for “Law” in the Strict Sense:

  • Formal: Emanates from Parliament following a constitutionally established procedure.
  • Material: Must be general and abstract.

Various Forms of Legislation (all below the Constitution):

  1. Laws Strictly (Rules with the Force of Law):
    • State: Organic Law and Ordinary Law
    • Regional
  2. Legislation Emanating from the Executive:
    • Statutory Law
    • Decree
  3. Regulatory Power of the Executive: Regulations, Decrees, Orders
  4. Legal Norms of International Origin:
    • International Treaties
    • EU Regulations
A. Laws Strictly (Rules with the Force of Law)

Since the 1978 Constitution, laws in the strict sense exist at both the state and regional levels. They are on the same level, with preference given based on jurisdiction over the subject matter.

Organic Laws vs. Ordinary Laws (State Laws):

Differences:

  1. Degree of Parliamentary Involvement:
    • Organic Laws: Require an absolute majority vote in the Congress of Deputies (half plus one of all members).
    • Ordinary Laws: Require a simple majority vote (half plus one of the deputies present).
  2. Subject Matter:
    • Organic Laws: Regulate matters considered most important, as outlined in Article 81 of the Constitution (e.g., fundamental rights, Statutes of Autonomy, electoral system).
    • Ordinary Laws: Can regulate all other matters not reserved for Organic Laws.

Hierarchical Position: The difference is not hierarchical; the choice depends on the subject matter. In matters reserved for Organic Law, it prevails.

Regional Laws:

  • For an Autonomous Community to legislate, its Statute of Autonomy must provide for the creation of an autonomous parliament with authority over the subject matter.
  • Statutes of Autonomy are state laws passed by Parliament as Organic Laws.
  • Regional laws have neither more nor less value than state laws; preference is determined by competence.
B. Legislation Emanating from the Executive

These are not strictly laws, as they do not emanate from Parliament. However, the Constitution allows the Government to issue provisions with the force of law under certain circumstances.

Legislative Decree (Delegated Legislation):

Article 82 of the Constitution: “Parliament may delegate to the Government the power to make rules with the force of law on matters not requiring Organic Law.”

Requirements:

  1. Authorization by Parliament.
  2. Delegation through an Act of Parliament.
  3. Explicit delegation specifying the subject matter and timeframe.

Decree-Law:

Article 86.1 of the Constitution: “In case of extraordinary and urgent need, the Government may issue temporary legislative provisions in the form of decree-laws. These may not affect the regulation of basic state institutions, rights, duties and freedoms of citizens, the regime of the Autonomous Communities, or the General Election Law.”

Limitations:

  1. Extraordinary and urgent need.
  2. Provisional nature; must be ratified by Parliament within 30 days.
  3. Cannot regulate matters reserved for Organic Law.
C. Regulatory Power of the Executive (Laws in the Broad Sense)
  • Written rules issued by both the State and Autonomous Governments.
  • Hierarchically below laws, their role is to complement existing law.
  • Cannot change the content of the law or regulate matters reserved for law.

Examples: Regulations, Decrees of the Council of Ministers, Ministerial Orders, Resolutions, Circulars, Instructions.

D. Legal Norms of International Origin

a) International Treaties:

Article 96.1 of the Constitution: “Validly concluded international treaties, once officially published in Spain, shall form part of the internal legal order. Their application shall require no further legislation.”

Hierarchy:

  • Relationship with the Constitution: Treaties are subordinate to the Constitution. Treaties contradicting the Constitution require prior constitutional review.
  • Relationship with Other Laws:
    • Laws Prior to the Treaty: Generally have the same value as a law.
    • Laws After the Treaty: Cannot amend the treaty; must be repealed, amended, or suspended according to the treaty’s provisions or international law.

b) Provisions of the EU:

Article 93 of the Constitution allows for the allocation of powers to international bodies, including the EU.

Hierarchy of EU Law:

  • Treaties establishing the EU act as a quasi-constitution.
  • Secondary legislation includes regulations and directives, emanating from the Council and Commission.
  • Regulations are directly applicable in all Member States.
  • Directives set objectives, leaving implementation to national authorities.

Principles of EU Law:

  • Primacy: EU law takes precedence in areas of EU competence.
  • Direct Effect: EU law can create rights and obligations enforceable in national courts.

3. THE CUSTOM

Article 1.3 of the CC: “Custom shall govern only in the absence of applicable law, provided it is not contrary to morality or public order and is proven.”

Concept:

“Custom is a rule created and imposed by social usage.” (De Castro)

Characteristics:

  • Created by the community without formal procedures.
  • Requires legal intent (the belief that it is obligatory).

Elements:

  • External Element (Material): Repetition of uniform acts over time.
  • Internal Element (Psychological): Conviction that the behavior is obligatory (opinio juris).

Custom as a Source of Law:

  • Alternative source to law.
  • Subsidiary; applied only in the absence of applicable law.

Requirements:

  1. Subsidiary application.
  2. Must be proven.
  3. Limited application; local character.
  4. Must be rational and not contrary to morality or public order.

Classes (Relationship with Law):

  • Secundum Legem: Agrees with the law; no application, the law prevails.
  • Contra Legem: Contradicts the law; no application, the law prevails.
  • Praeter Legem: Regulates an area not covered by law; acts as a source of law.

Social Practices and Legal Interpretation:

Article 3.3 of the CC: “Legal practices that are purely interpretive shall not be considered as custom.”

Custom is a social usage with legal intent (opinio juris). Social practices used for legal interpretation or contract interpretation are not customary and lack binding force.

4. GENERAL PRINCIPLES OF LAW

Article 1.4 of the CC: “The general principles of law shall be applied in the absence of law or custom, without prejudice to their informative character.”

Concept:

Extra-legal rules with a fundamental character that go beyond specific legal mandates or customs.

Function According to the CC:

  • Complete the legal system; a last resort for cases with legal loopholes.

Doctrinal Interpretation:

  1. Foundation of the legal system.
  2. Guide for legal interpretation.
  3. Source of law in the absence of law and custom.

Distinction from Constitutional Principles:

Constitutional principles take precedence over general principles of law.

5. THE VALUE OF CASE LAW AS A SOURCE OF LAW

Case law (jurisprudence) refers to the doctrine emanating from judicial decisions.

Case Law in the CC:

Article 1.6 of the CC: “Case law shall complement the legal system with the doctrine repeatedly established by the Supreme Court in interpreting and applying the law, custom, and general principles of law.”

Requirements for Case Law to be Considered Doctrine:

  1. Decision of the Supreme Court’s Civil Division.
  2. Contained in repeated and consistent rulings.
  3. Found in the operative part or legal basis of the ruling.
  4. Fundamental similarity between the cited case and the case under consideration.

Functions of Case Law:

  1. Interpretation of ambiguous legal provisions.
  2. Integration of legal norms.
  3. Settlement and application of general principles of law.

Case Law as a Source of Law:

Today, case law is generally not considered a source of law in Spain for logical and legal reasons:

  • Logical: Case law decisions are specific to the case at hand and may not be consistently applied in similar cases.
  • Legal: The Constitution assigns the function of applying and enforcing the law to courts, not creating it.

Article 1.6 of the CC does not attribute the function of being a source of law to case law but rather to complement the legal system.

Note on “Doctrine”:

Legal doctrine refers to the authoritative opinions of legal scholars and academics. Resolutions of the General Directorate for Registries and Notaries (DGRN) hold a special place within legal doctrine, providing solutions to legal issues related to land registry matters.