Sources of Spanish Civil Law: A Comprehensive Overview
Sources of Spanish Civil Law
Introduction
According to Article 1.1 of the Spanish Civil Code, the sources of law are the law, custom, and general principles of law. This document provides a comprehensive overview of these sources.
The Spanish Constitution of 1978
The current Spanish Constitution is the supreme legal standard. It defines the system of sources of law and establishes itself as a rigid and self-given constitution. All other legislation must conform to the Constitution and its principles and values.
The Law
The term “law” has various meanings. In the legal context, there is a hierarchy of laws, as protected by the Constitution:
- Constitution: Supreme standard
- Community Rules (Article 93 EC)
- Principle of Supremacy: Community standards prevail in case of conflict.
- Types:
- Regulations: General application with direct effect.
- Directives: Indirect action, not directly applicable by courts.
- International Treaties
- Rules with the Rank of Law:
- Organic
- Ordinary
- Special
- Decree-Law
- Decree-Laws
- Standards Without the Rank of Law:
- Royal Decree
- Ministerial Order
Custom
Custom, a primary extra-legal source, is a rule of law developed through repeated acts with legal intent.
- Requirements (Art. 1.3 CC): Must not contradict morality or public order and must be proven.
- Custom Classes:
- By its territorial scope
- By subject matter
- By its relationship with the law:
- Extra legem or praeter legem
- Contra legem
- Secundum legem
- Functions of Uses (does not require opinio iuris): Custom validates an existing practice.
- Business legal traffic
- Interpretive: Clarifies legal rights in the absence of specific rules.
- Normative: Integrates the will of the parties; can modify the course of governing practices.
General Principles
General principles are a subsidiary source of law, applied only in the absence of applicable law or custom. They are a set of rules not formally established, often considered principles of natural law.
- Collected in the Spanish Constitution and Civil Code.
- Application: Determined by the Supreme Court based on legal analysis and doctrine.
- Functions:
- Basis of the entire legal system
- Guide the work of interpretation
- Secondary extra-legal source
Jurisprudence
Jurisprudence refers to the criteria established by the courts, particularly the Supreme Court, in interpreting and applying objective law.
- Requirements:
- Decision of the Supreme Court or appellate court on questions of legal right.
- Stability in its approach (at least two consistent judgments).
- Clear reasoning (ratio decidendi, not obiter dicta).
- Substantial identity to the case being decided.
- Source of Law?: Jurisprudence lacks the required abstraction and generality and does not directly affect non-parties. However, it provides valuable criteria and complements the legal system.
- Civil Court: Plays a complementary and integrative role. The Supreme Court’s rulings are binding on lower courts.
Other Alleged Sources of Law
- Doctrine: Interpretation of laws that assists the legislature.
- Rules of Private Legal Persons: Contractual value, non-regulatory.
- Terms of Contracts: Content of a specific agreement.
- Legal Business: Private precepts with effects between the parties.