Spanish Constitution and Law Sources
Item 19: The Constitution as the Source of Law
Secondary Rules
1. Regulatory Powers
The Spanish Constitution grants the government regulatory power, defined as the executive’s ability to issue general rules below the rank of law. This authority is inherent in the executive function. A key question is whether the government can exercise this power where the law doesn’t act. This issue has two aspects:
- In some countries, the Constitution reserves certain matters for law, while others are covered by regulations.
- In other countries, including Spain, law covers all matters and regulates the entire legal system. Spanish regulations cannot exist independently of the law, except for organic regulations governing institutions.
1.1. Concept of Regulation
A regulation is a legal provision of a general nature and value, subordinate to the law, and enacted by the Administration. Statutory rules cannot repeal or amend laws, but laws can repeal regulations. Regulations are part of the legal system and extend it. The more a rule of law is applied, the stronger it becomes.
The scope of a regulation isn’t predefined; it depends on the law it enforces. The Spanish Constitution doesn’t provide for regulatory reserves. According to the Constitutional Court (TC), the requirement of law for a matter doesn’t prevent regulatory collaboration in its development, provided it’s essential. The legislature cannot foresee all cases, so regulations develop and supplement the law.
Regulations have various names: Decree, Ministerial Order, Autonomous Council Order, Bando, etc. The government’s regulatory power doesn’t exclude other administrative bodies, which can exercise it if legally entitled.
1.2. Types of Regulations
Regulations can be classified by several criteria:
- Relationship with Law:
- Independent Regulations: These don’t stem from laws but regulate matters the Constitution doesn’t reserve for regulations.
- Executive Regulations: These develop and refine laws, usually because the law allows it.
- Origin:
- State Regulations: The highest is the Royal Decree, approved by the Prime Minister or Cabinet. Ministerial Orders, issued by Ministers on departmental matters, are subordinate. Lower legislative authorities also issue regulations.
- Autonomic Regulations: Issued by Autonomous Communities, including decrees of the Council of Government, resolutions of Directors, and those of lower authorities.
- Local Regulations: Issued by local bodies, including regulations for each entity (ordinances with external efficiency, under the Plenum’s competence) and orders issued by the mayor.
- Institutional Regulations: Issued by institutional and corporate entities, subject to territorial government regulations.
1.3. Exercise and Control of Regulatory Power
Ordinary courts control the legality of regulations, which are subject to judicial review. Regulations aren’t subject to appeals of unconstitutionality before the TC. To challenge a regulation:
- Exception: Non-application of the regulation in a specific court case.
- Administrative Litigation: Direct appeal (frontal attack, requesting annulment) within two months of publication. Indirect action challenges a specific administrative act based on the regulation’s illegality. The judge can raise the question of illegality to the competent court, which may annul the regulation erga omnes.
1.4. The Non-Derogable Principle of Regulation
This principle prevents authorities from issuing regulations that abrogate a specific case. Such pronouncements are void. This prohibition is based on equality, legal certainty, and the interdiction of arbitrariness of public powers.
1.5. Other Statutory Powers
These are internal regulatory powers of state bodies with regulatory autonomy. These regulations only affect those belonging to or dependent on the organ, not external citizens.
The Constitutional Court, General Council of the Judiciary, and parliamentary bodies (state and autonomous) have this autonomy. These regulations are subordinate to the governing law of each body, except parliamentary regulations, which are subordinate only to the Constitution.
2. Collective Agreements
The Constitution incorporates collective agreements, originating from private negotiations, as valid legal rules. Collective agreements have binding force and general effectiveness.
They bind all subjects within their territorial and material scope. The legislature sets requirements for signing them. Agreements not meeting these requirements are binding only between the parties involved.
There’s no specific reservation for collective agreements. In case of conflict with law, law prevails unless the agreement seeks preferred application due to greater expertise.
3. Jurisprudence of the Tribunals
Jurisprudence is the set of court resolutions interpreting and applying legal rules. It’s the living embodiment of the system.
In Spain, ordinary case law isn’t a source of law. Courts are subject only to the rule of law, not judicial precedent. Their function is to judge and enforce decisions, not create law. There’s no binding precedent.
However, in practice, lower courts often follow Supreme Court (TS) rulings. The TS sets general criteria for applying and interpreting law. Its task is to unify interpretation and application, making its decisions a reference point. Courts can object to TS criteria, so case law isn’t officially a source of law. However, judges and courts often follow higher courts’ criteria for consistency and to avoid revocations.
Finally, two other sources of jurisprudence result from European integration:
- European Court of Human Rights
- Court of Justice of the European Union