Spanish Constitutional Law: State Structure and Sources

Posted on Feb 27, 2026 in Protocol and Event Organization

State Elements and Constitutionalism

State Definition and Constitutional State

State Elements: Permanent population, defined territory, government, and capacity to enter into relations with other states (Montevideo Convention, 1933).
Spain is a Constitutional State: Its main principle is the Rule of Law; nothing is above the law. Power originates, is regulated, and is subject to law.

What a Constitution Regulates

The exercise of power: State institutions and their relations (separation of powers – Montesquieu). It settles the basic institutional architecture.
The fundamental rights of citizens, serving as a limit to the exercise of power.

Not every Constitutional State has a written Constitution (e.g., Great Britain, Israel). A Constitutional State is defined by three principles:

Rule of Law
Separation of Powers
Fundamental Rights

Legal System and Sources of Law

Types and Characteristics of Norms

Multiple types of norms exist:

National norms (e.g., laws)
Autonomic norms
Local norms (e.g., terrace regulations)
Constitution
Contracts (e.g., community norms in a building)
Horizontal property statutes

Characteristics of Norms

The basic feature is “Erga Omnes”, affecting everyone, with the capacity to affect undetermined people (e.g., car regulations, criminal code).

A contract is not a norm because it applies to a particular, individualized situation (Inter Pares effect), only affecting the signing parties.

Hart’s Primary and Secondary Norms

Primary norms: Apply to any situation and have always existed (e.g., parking bans, speed limits).
Secondary norms: Regulate the norms, fundamental for understanding a Legal System.

The Theory of the Sources of Law

This theory studies the nature and relationship between different sources of law and the organization of norm types. A source of law is a category or type of norm through which law comes to exist (Source = container / norm = content).

Norm: Prohibition and punishment of manslaughter.
Source: A law (Criminal Code).

If a norm exists, there is always an identifiable source of law (Penal, Civil, Work, Administrative).

The Spanish Constitution as a Source of Law

Basic Legal Principles and International Perspective

The hierarchy concerning Spain in the world is:

UE Law → CE → International Treaties (approved by parliament, superior rank to ordinary/organic laws) → LAW → Government and Administrative Regulations.

Article 1 Civil Code: Sources of Spanish Law

The sources of Spanish law are legislation, custom, and general principles of law.
Provisions contradicting higher-ranking ones are invalid.
Custom applies only if no law is applicable, provided it is not contrary to morality or public order, and must be proven.
General principles of law apply in the absence of law or custom.
International treaties are not directly applicable until published in full in the Official State Gazette (BOE).
Case law complements the system through doctrine repeatedly established by the Supreme Court.
Judges must resolve all matters according to the established system of sources.

Direct, Indirect, and Case Law Sources

Direct sources: Written (Constitution, ratified treaties, laws, regulations) and Unwritten (Custom).
Indirect sources: Case law and doctrine.

The Law

The law is the dominant source after the Constitution. Its characteristics are binding force (applies to citizens and state bodies) and formal nature (approved by constitutionally vested legislative bodies).

A formal law is approved by Parliament, sanctioned, promulgated, and ordered for publication by the King (Art. 91 CE), and published in the BOE (Art. 2.1 CC).

Formal Laws: Organic vs. Ordinary

Organic laws: Relate to fundamental rights, public freedoms (Title I, Chapter II, Section 1 CE), Statutes of Autonomy, and the electoral system.
Ordinary laws: Approval does not require the reinforced quorum of organic laws.

Rules Ranking as Laws

Legislative Decrees and Decree-Laws rank alongside laws enacted by Parliament. The Government exercises legislative initiative by drafting bills for the Cortes Generales.

Regulations

Article 97 CE establishes that the Government directs policy and exercises executive power and regulatory authority in accordance with the Constitution and laws.

A regulation is any general legal provision issued by the Public Administration, subordinate to the law.
Regulations are written rules issued by the Administration (unlike laws from Parliament).
Regulations contain legal rules, distinguishing them from administrative acts.
Regulations are issued via regulatory power.
Regulations have a lower value than law.

Constitutional Principles on the Legal System (Art. 9.3 CE)

Legal Certainty

The basic organizing principle of the legal system:

Regularity and predictability in public authority behavior.
Confidence in the stability of laws and consistent actions by authorities.
Excludes arbitrary modification of legal situations.

Normative Hierarchy

An essential structural principle providing certainty:

Integration: Norms categorized by rank and force.
Hierarchical relationship: Prevalence in conflict cases. Judges apply this hierarchy.
Example: A municipal ordinance cannot permit what a state law prohibits.

Competence

The need for each rule to be issued by the body with the regulatory power, considering territorial competence (local councils, autonomous communities, state).

Effectiveness of the Legal System

Publication of Norms

Requirement for general compliance. No norm enters into force until published (BOE, etc.).
Art. 6.1 CC: Ignorance of the law is no excuse for non-compliance.

Non-retroactivity of Unfavorable Penalty Provisions

Affects criminal and administrative penalties. Regulations generally have future effect.
Prevents punishing conduct with rules harsher than those in force when the act occurred.
Sensu contrario: Retroactivity of favorable future provisions (criminal law).

Actions of Public Authorities

Legality

All public authorities are subject to the law.

The legislator must obey existing laws but can modify them, limited only by the Constitution.
Judges must apply and interpret existing laws.
The government must adhere to law in procedures and objectives.

Prohibition of Arbitrary Action

All decisions must have a legal and rational basis. Authorities must act only to fulfill objectives entrusted by the legal order and in the general interest.

Responsibility

Public authorities must be responsible for damage caused by illegal or negligent actions. Citizens can claim responsibility.

Legislative Power of Autonomous Communities

State and Autonomous Community ordinary laws have the same rank but different territorial scope and subjects.

Subjects under community jurisdiction (education, health, housing, etc.).
Ordinary regional laws (Parliament).
Regional legislative decree (Government).
Regional regulations and decrees (Government).
Regional orders (technical aspects).

State and Government Forms

Autocracy

Form of government where power is concentrated in one person. Includes dictatorships, authoritarian, and totalitarian regimes. Characteristics oppose democracy:

Concentration of power.
Repression of political opposition.
Recognition of rights compatible only with state interests.
Power exercised via police structure.

Theocracy

Merger of religious and civil spheres, with religious prevalence.

State legitimized by religious faith.
Religious principles have legal efficacy.
Subordination of political power to religious power.
Preservation of religious orthodoxy; repression of dissent.

Socialist/Communist

Authoritarian or totalitarian, characterized by the single party representing working classes, theoretically based on class struggle.

Democracy

Demos = the people. Sovereignty of the people to govern itself.

Representative democracy: Decisions taken by elected persons.
Direct democracy: Decisions taken by the people via binding referendums (e.g., ILP, Referendum in Spain).

Forms of Head of State and Government

Forms of Head of State: Republic vs. Monarchy

Forms of Government: Parliamentary, Presidential, and Assembly

The Parliamentary System

One-election system: Parliament elects the President of the Government (Prime Minister).
Examples: Parliamentary monarchies (Spain, UK) and republics (Germany, Italy).
Advantage: Efficiency due to fusion of executive and legislative powers.
Disadvantage: Difficulty in appointing a Government, potentially leading to dissolution.

The Head of State is generally a King or an honorific President of the Republic.

Special Case: The United Kingdom

Classically based on Parliamentary Sovereignty (absolute) and Rule of Law (relative).

Model Change: Influenced by the Human Rights Act 1998 (ECHR), the strengthening of Rule of Law principles, decentralization, and the Constitutional Reform Act 2005 (creation of the Supreme Court).

The Presidential System

Government elected directly by the people, separate from the legislative election.
Executive holds more independent powers (e.g., veto). More separation between powers.
Advantage: Government is automatically established by elections; no formation blockage.
Disadvantage: Potential collision between Parliament and Government, blocking policy implementation.

Semi-presidential System

Executive functions divided between a directly elected President and a Prime Minister elected by Parliament (e.g., France, Portugal).

Assembly System

Form of government associated with direct democracy; generally impossible in large, complex systems.

Territorial Systems: Unitary and Federal States

Federal States

Union of several previous states creating a common Federal government with shared competences, while states maintain self-government.

Competences clearly attributed to States and Federation in the Constitution.
States often hold important competences (e.g., their own judicial power).
Examples: USA, Germany, Canada.
Unlike confederations, states cannot leave unilaterally.

Unitary States

Competences are not permanently settled by the Constitution; the Central State generally retains the capacity to alter competences.

Includes regional states (Italy), centralized states (France), and states with political decentralization (UK, Spain).

Spain: The Autonomic State

A rare, non-finished territorial model:

Competences are appointed in various lists (exclusive State, exclusive CCAA, shared, concurrent).
Regions developed from previous provinces; they have Parliaments (political decentralization).
Formally not a Federal State, but regions have federal-like competences (de facto federal).

The Crown (Monarchy)

Title II and the Type of State

Regulated in Title II CE, defining Spain as a Parliamentary Monarchy (Art. 1.3 CE).

Historical Evolution of Monarchies

Absolute Monarchy: All powers concentrated in the Monarch.
Limited Monarchy: King delegates some powers (e.g., taxes to Parliament) but retains residual functions.
Constitutional Monarchy: King holds specific powers defined by the Constitution (e.g., executive power).
Parliamentary Monarchy: King holds no decision-making or political power; functions are ceremonial/representative, expressly stated in the Constitution.

The Spanish Monarchy (1978)

Title II uses the term “Crown” to distinguish the Institution from the temporary representative (King/Queen). It is not a State power; the King holds symbolic and representative functions.

The King’s Status

Head of State (Art. 56 CE).
Inviolability: Protection of dignity; not the same as non-responsibility. Cannot be tried for crimes, though civil responsibility might exist but not claimed by ordinary jurisdiction. This applies to the institution, not the person.

Royal Succession

Art. 57 CE specifies succession criteria based on classic Castilian tradition:

Primogeniture of the line (descendants from each other).
Closest grade in the same line.
In the same grade: Primacy of the man (masculinity principle), then primacy of age.

Some authors argue the masculinity principle violates Art. 14 CE (equality), but the TC deemed it an exception accepted by the Constitution. Change is postponed until necessary via an aggravated procedure.

The Regency

If the King is underage, the mother/father or closest adult in succession assumes the Regency.
If the King becomes incapable (recognized by Cortes Generales), the Prince Heir assumes the Regency.

Functions of the King

Basic role: Represents the Crown, unity, and permanence of Spain; highest representation in international relations; moderates the regular functioning of institutions.

Most functions (Art. 62 CE) are automatic, except:

Proposing a candidate for President of the Government (some discretion, seen in 2015-2016 governability crisis).

The Royal Assent

Art. 91 CE: The King must assent to laws passed by the Cortes Generales within fifteen days, promulgate them, and order their publication. This is part of the law’s entry into force process.

The assent is not discretionary (though it used to have veto effects). The 1978 Constitution does not provide a solution if the King denies assent.

The Countersign (Art. 64 CE)

The King’s acts must be countersigned by the President of the Government and, where appropriate, competent ministers.
Those countersigning are liable for the acts. This is the mechanism for the King’s non-responsibility.
Acts are invalid without a countersign, except for appointing the King’s own personnel.

The Parliament (Cortes Generales)

Regulation and Composition

Regulated in Title III, placed symbolically after the Head of State.

Composed of:

Congreso de los Diputados (Congress)
Senado (Senate)

Imperfect Bicameralism

The Congress (lower chamber) displays more important functions than the Senate.

Composition

Congress: 300–400 deputies (LOREG sets 350), elected via direct, universal, equal suffrage every four years.
Senate: Territorial representation chamber. Four representatives per province (direct suffrage, poor proportionality) plus Senators appointed by Autonomous Communities based on population.

Independence of the Parliament

Inviolability (Art. 66.3 CE): No Court, Government, or other body can interfere with its regular functioning.
Organizative and Self-governing Independence (Art. 72): Parliament establishes its internal functioning via Chamber Regulations (Reglamentos), which are not administrative regulations and only reviewable by the TC. The Chamber President exercises authority within the chamber.
Economic Independence (Art. 72): Chambers settle their own budget and salaries.

Legal Status of Members of Parliament: Prerogatives

Privileges designed to protect the independence of the Member (representative), not the person.

Parliamentary Inviolability: Special, overprotected freedom of speech and criticism within their parliamentary role (irresponsibility for opinions expressed).
Parliamentary Immunity: Members can only be detained for flagrante delicto. Prosecution requires the Chamber’s consent (suplicatorio).
Privileged Jurisdiction (Aforamiento): If suplicatorio is successful, they are tried in the Supreme Court, not a regular court.
Power to require data, documents, and reports from Administrations.

Parliamentary Incompatibilities (Art. 70 CE)

Members cannot simultaneously hold positions in:

Other constitutional organs (except Government).
Judges or Prosecutors (in active service).
Active members of the Army or Security Corps.
Members of Electoral Juntas.

Functions of the Parliament (Art. 66 CE)

1. Legislative Function

No longer absolutely exclusive (due to DL and LD).

Legislative Initiative

Governmental: Bill (proyecto de ley).
Parliamentary: Non-governmental bills (proposición de ley) from Congress or Senate.
Autonomical: Assemblies can ask the Government or Parliament to propose a law.
Popular: Popular Legislative Initiative (ILP) requires at least 500,000 signatures.

Main Role

Drafting and approving norms.
Approving the national Budget.
Controlling government action.
Authorizing International Treaties.
Delegating legislative powers to the Government.
Reforming the Constitution.

Work of the Legislative Process

Proposal of Law (legislative initiative).
Debate and Approval in the Congress of Deputies (committees, plenary sessions, amendments). Moves to Senate if approved by majority.
Review in the Senate.
Royal Sanction and Publication (BOE, entry into force).

The Senate’s Role

An unavoidable actor, functioning more as a Chamber for deliberation than purely territorial representation.

Once approved by Congress, the Senate has three options:

Accept.
Amend (accepted by Congress via simple majority).
Veto (requires absolute majority in Senate). Congress can override a veto by absolute majority or wait two months if the veto was absolute.

2. Budgetary Function

Financial control of State accounts through the annual approval of the National Budget State Law.

3. Control of the Government

Classified into two groups:

Governmental Supervision: Political responsibility via questions, motions, and investigation committees (Control sessions).
Control derived from Parliamentary Confidence: Investment, cuestión de confianza, and moción de censura.

Confidence Procedures

Investment: Initial confidence given to the Government.
Vote of Confidence (Cuestión de confianza): Revalidation procedure initiated only by the President. If it fails, the President becomes in functions until a new president is elected (no new elections).
Motion of Censure (Moción de censura): Requires at least one-tenth of deputies and must include an alternative candidate. If passed, the President resigns, and the alternative is named.

The Government

Regulation and Formation

Regulated in Title IV, following Parliament. The Government directs national policy.

In the Parliamentary system (Spain), the Government is indirectly elected by Parliament; separation between Executive and Legislative is non-rigid.

Process of Formation (Art. 99 CE)

After elections, the King proposes a candidate.
Candidate presents political program to Congress seeking confidence (Investment debate).
Congress votes investment: absolute majority (1st round) or simple majority (2nd round).
If no president elected after two months, Parliament is dissolved, and new elections are called.

Functions (Art. 97 CE)

Directs domestic and foreign policy: Legislative initiative (Bills), exceptional legislative powers (DL, LD), direction of economic activity (PGE proposal, public debt), negotiation of treaties, control of CCAA (Art. 155 activation).
Directs civil and military administration.
Directs the defense of the State (Armed Forces, Security Forces).
Exercises executive and regulatory authority (potestad reglamentaria) in accordance with the Constitution and law.

Composition

Includes the President, Vice President(s) (optional), and Ministers (compulsory).

President of the Government: Center of gravity; directs action and coordinates members (Art. 98.2). Can replace Ministers but cannot decide directly in their departments.
Vice President(s): Substitute the President in absence/sickness; may coordinate departments.
Ministers: Heads of their Department; execute government action under the President’s instructions; can issue Ministerial Orders.

The Council of Ministers

The collegiate body (usually meets Tuesdays/Fridays), presided over by the President. Approves Decree-Laws, Legislative Decrees, Reales Decretos (regulations), and other agreements.

The Caretaker Government (En Funciones)

The outgoing Government continues until the new one takes office (Art. 101 CE).

Ley 50/1997 limits its actions:

President cannot: Propose dissolution, cuestión de confianza, or consultative referendum.
Government cannot: Approve the State Budget Bill or present bills to the Chambers.

Control by Parliament over caretaker decisions is debated, pending TC resolution.

The Administration

Relations with the Government

The Administration is hierarchically submitted to the Government but remains constant while governments change.

Neutrality Principle (Garrido Falla):

Political neutrality of the Administration (Art. 103 CE): Serves the general interest objectively, not just blindly following the Government’s lead.
Administrative neutrality of the Government: Prohibition of interference in Administration affairs beyond leading it (e.g., professionalization).

Principles Governing the Administration

Organization: Hierarchy, Coordination, Decentralization (territorial administrations).
Action: Objectivity (Neutrality), Efficacy, Participation (citizens heard in regulation, access to archives).

Territorial Organisation of the State Administration

Central Administration: Ministries.
Territorial Administration: Delegates and subdelegates of the Government.
Administration Abroad: Embassies and representatives.
Institutional Public Administration: Independent Authorities (CNMV), State Public Companies (Adif, Correos), Trusts.

The Council of State

Supreme Advisory Organ (Art. 107 CE), independent of the three powers.

Function: Issues reports on matters requested by the Government or established by law (compulsory or non-compulsory).

The Judicial Power (Title VI)

Jurisdiction and Organization

Art. 117.3 CE: Exercise of judicial authority (passing and executing judgments) lies exclusively with Courts and Tribunals established by law.

Courts (Juzgados): One judge.
Tribunals: Collegiate bodies (magistrates) (e.g., Supreme Court, Provincial Courts).

Organization by Matter (Five Branches)

Civil Jurisdiction: Private conflicts (commercial, contractual, family).
Criminal Jurisdiction: Criminal offenses.
Administrative Jurisdiction (Contencioso-administrativa): Controls executive/Administration action.
Social Jurisdiction: Employment issues.
Military Jurisdiction: Matters concerning the Armed Forces.

Principles Governing the Judicial Power

1. Independence of the Judicial Power

Judges and magistrates are independent and only subject to the Rule of Law (Art. 117).

Internal dimension: Independence against other judicial organs and the governing body (CGPJ).
External dimension: Independence against other powers, guaranteed by self-rule and protections.

Main Guarantee: Judges are irremovable (can only be separated for causes established by law). Rigid system of incompatibilities (cannot hold political or union office).

2. Submission to the Rule of Law

The only limit to independence. Judges must apply and interpret law according to the Constitution, not modify it.

Consequence: Judges are responsible (civilly, disciplinary, or criminally) or the State is responsible for mistakes (Art. 121).

3. Jurisdictional Unity (Art. 117.5 CE)

Jurisdictional Exclusivity: Judges only exercise jurisdiction (judging/executing decisions).
Jurisdictional Monopoly: Only judges can exercise jurisdiction (except the TC).
Territorial Unity: One jurisdiction, leading up to the Supreme Court (Tribunal Supremo).

The General Council of the Judicial Power (CGPJ)

Governing body of the Judicial Power (Art. 122.2 CE).

Decides upon promotions, disciplinary matters, and administrative issues (locations, training).

Composition

One President (who is the President of the TS) and 20 members (vocales):

Twelve judicial members: Elected by Congress and Senate (previously elected by judges themselves).
Eight jurist members: Elected by Congress and Senate.

This composition raises concerns about political influence (politicization).

The Office of General Attorney (Ministerio Fiscal)

Represents and defends the general interest in judicial procedures (mainly criminal). Not an actual ministry. Independence is controversial as the President elects the Fiscal General del Estado.

The Constitutional Court (TC)

The Normative Constitution and Control

The existence of a Normative Constitution requires an organ to guarantee its prevalence.

Models of Constitutional Control

Administrative Organs: France (Conseil Constitutionnel).
Judicial Organs (Judicial Review): USA (any judge can declare unconstitutionality, but only the Supreme Court decision has erga omnes effect).
Constitutional Court: Kelsen’s model (Spain, Italy, Germany); independent, pseudojudicial organ that declares unconstitutionality with erga omnes effect.

The Spanish Constitutional Court

A Constitutional Organ, independent from the Judiciary and other powers, though operating like a jurisdictional organ.

Role: Supreme Interpreter of the Constitution (LOTC, Art. 1). Its interpretation prevails over others, though it is technically not above the Supreme Court except in constitutional matters.

Functions (Art. 161 CE)

1. Control of Constitutionality of Laws

Acts as the “Negative Legislator”, expelling norms from the legal system without creating them.

The “Bloque de Constitucionalidad”

Includes Statutes of Autonomy, Organic Laws, Decree-Laws, Legislative Decrees, International Treaties, and Chamber Regulations.

Control is usually post-approval (the law exists while deliberating), except for international treaties and Statutes of Autonomy (since 2015).

Procedures for Control

Recurso de inconstitucionalidad (Direct Appeal): Presented by the President of the Government, Ombudsman, 50 deputies/senators, or CCAA governments/assemblies.
Cuestión de constitucionalidad (Indirect Appeal): Raised by a judge during a procedure when they doubt a law’s constitutionality. The judge suspends the case and refers the question to the TC.

2. Recurso de Amparo (Appeal for Protection)

Against violation of fundamental rights and liberties (Arts. 14 to 29 CE).

Can be presented only after exhausting all judicial appeals (Principle of Subsidiarity).

3. Conflicts of Competence

Between the State and CCAA, or between CCAA, regarding invasion of competences.

4. Other Matters

Open clause (cajón de sastre) for matters assigned by Organic Law or Constitutional reform.

Composition of the Court (Art. 159.1 CE)

12 members, appointed from jurists with at least 15 years of practice and recognized competence:

2 appointed by the Government.
8 appointed by Parliament (4 Congress, 4 Senate) by a 3/5ths majority.
2 appointed by the CGPJ (judicial members).

The 3/5ths majority offers more guarantee than a simple majority, though appointments often reflect political splitting. Once appointed, members serve a non-renewable 9-year term.