The Concept of Law: An Overview
Item 11 LAW
Concept of law
- Concept: Norma solemn emanating from the Parliament, after discussion i vote in Parliament, and enacted and promulgated by that name by the King “(Rodríguez-Zapata)”
- Defining elements: preamble to the EC 3
Normative character: as a matter bind themselves available for all p eople (peremptory norm).
Democratic: the result of parliamentary debate Act (understanding the parliament as the people’s representatives).
Expression of sovereignty: the laws to come into force must be promulgated by the holder of sovereignty in our case the king (highest authority).
The law concept
The law in social and democratic state of law.
Overview: the law is characterized by a generality, the law applies equally to all persons regardless of their inequalities (although there is some discrimination covered by law)
Universality: the law applies equally to all people, all people are subject to the law. Is prohibited by law in individual cases but sometimes if there is a democratic regime.
Legislative monopoly: the law can only parliament as it is the popular representation.
Constitutional supremacy: the law is to bind the constitution.
State autonomy: the complexity of the state denied that the laws are only the fruit of the parliament.
The European Union: higher standards emanating from the parliament.
Legislative Process
Description of content: the standard itself (substantive law)
Order imperative: who makes the formal law.
Law the concept
Reserve Act:
Absolute: the constitution identifies areas that are reserved and therefore can only be changed by statutory law.
Relative: the constitution alludes to the law broadly.
Regulatory: the law can regulate any aspect.
Strength, range and value of law:
Force of law to civil disobedience of the law
Grit à parliamentary acts
Law to place rank in the hierarchy of norms
Kinds of laws
Origin
General Cortes of the Constitution Article 66.2 (Las Cortes Generales exercise the legislative power of the state, adopt its Budget, control the action of the Government and have the other competences assigned by the Constitution)
CE Art.152.1 regional assemblies (in the Statutes approved by the procedure referred to in the preceding article , the institutional organization is based on a regional legislative assembly elected by universal suffrage under a system of proportional representation to ensure also the representation of different parts of the territory, a Governing Council with executive and administrative functions, and a President elected by the assembly from among its members and appointed by King, which accounts for the direction of the Governing Council, the supreme representation of the respective Community and the State’s ordinary in that. The President and members of the Council shall be politically accountable to the Assembly.)
Matter
“Budget Law (134 CE)
1. It is for the Government to draft the State Budget and the Cortes Generales to examine, amend and approve.
2. The State Budget shall annually, will include all the expenses and revenues of the State public sector and they recorded the amount of the fiscal benefits affecting State taxes.
3. The Government must submit to the Congress of Deputies of the State Budget at least three months before the expiry of the previous year.
4. If the Budget Bill is not passed before the first day of the relevant financial year, shall be automatically extended the previous year’s budget until the adoption of new ones.
5. Approved the General State Budget, the Government may only submit bills involving increases in public spending or decrease revenue for the budget year
6. Any bill or amendment which involves an increase in appropriations or a decrease in budget revenue shall require approval by the Government for processing.
7. The Budget Act may not impose taxes. It may modify them when a substantive tax law so provides
Law of bases (82 EC) delegation-Law (82 EC)
1. The Parliament may delegate to the Government the power to issue rules with the law on specific matters not included in the previous article .
2. Legislative delegation must be granted by a law of bases when its purpose is to draw up texts in sections, or by an ordinary law in the case of consolidating several legal texts into one.
3. Legislative delegation must be granted to the Government expressly for a concrete matter and with a fixed limit for its exercise. The delegation shall expire by the use of it then the government through the publication of the relevant standard. May not be construed as having been granted implicitly or for an indefinite period. Nor shall sub-delegation to authorities other than the Government itself
4. Framework laws shall define precisely the purpose and scope of legislative delegation and the principles and criteria to be followed in its exercise.
5. Authorization for consolidating legal texts shall determine the regulatory domain referred to the contents of the delegation, specifying if it is restricted to the mere formulation of a single text or whether it includes regulating, clarifying and harmonizing the legal texts have to be consolidated.
6. Without prejudice to the jurisdiction of the Courts, Laws of delegation may provide in each case for additional control
General common-Laws.
-Laws approved statutes of autonomy (81)
1. Organic laws are those relating to development of fundamental rights and public freedoms, those approving the Statutes of Autonomy and the general electoral system and the other under the Constitution.
2. The approval, amendment or repeal of the Organic Laws require an absolute majority of Congress in a final vote on the entire project.
“Laws of transfer / delegation (150.2 CE) The State may transfer or delegate to the Autonomous Communities, through organic law, powers of ownership pertaining to matters which by their very nature can be transferred or delegated. The Act shall, in each case the corresponding transfer of financial resources and forms of control to be retained by the State.
-Authorization of certain international treaties (93 CE) By organic law may authorize the holding of Treaties which is attributed to an international organization or institution the exercise of powers under the Constitution. It is up to Parliament or the Government, as appropriate, ensuring compliance with these treaties and resolutions issued by international agencies or supranational holders of the assignment.
“Certain materials
Ordinary laws
Classification procedure (75.2 EC) The Houses may delegate to Standing Legislative Committees approval of projects or proposals of law The House may, however, seek at any time the debate and vote on any bill or law that has been purpose of this delegation.
Delegation to a legislative committee (Art. 148 i 149 RCD, i RS 130-132): Automatic (CD) or upon a request (S) (deleted the second debate in plenary, the full value if handled or not the law if approves all functions delegated to the commission, though this creates a problem in the debate because it is very technical and less transparency).
Matter be delegated:
constitutional reform
international issues
organic laws
framework laws
PGE
Processing delegated: full debate and taken into account.
Certiorari of deliberation and final vote. The veto of the Senate (before the final committee vote that the law can return to full Senate by a veto by absolute majority or two months after publication).
Organic Laws
Article 81 EC.
Organic Laws 1Son those relating to development of fundamental rights and public freedoms, those approving the Statutes of Autonomy and the overall electoral system and the other under the Constitution.
2. The approval, amendment or repeal of the Organic Laws require an absolute majority of Congress in a final vote on the entire project.
Legal status: (not clear in the EC as the TC had to clarify)
relations with the ordinary law (in competition)
Reserve Act: strict interpretation.
materials “related” (according to the TC the Act may be developed by regulation)
Outreach material:
Development DD.FF. i LL.PP. (Art.15 and 19 EC)
Statutes of Autonomy
General electoral system
others (Art. 8.2, 54, 55.2, 87.3, 92, 107, 104.2, 116, 122, 136, 149.1, 150, 151.1, 157.3, 165, 166, 167 i 168 CE).
Procedure:
Absolute majority vote of all in the Congress of Deputies (Art.81)
Processing in the Senate veto (only rose by an absolute majority).
Laws of CCAA
- Art 152
- Legal status (at first were below, but now follows the criteria of competence)
- ordinary law.
- judicial review.
- Material scope
- Enabling statuary. (The state replaces the need for regulation of the community if required)
- Block constitutionality.
- Insertion in the Legal System
- Principle of competition.
- Collaboration between state law and the autonomic.
Supplementarily clause (Art. 149.3 EC). Matters not expressly assigned to the State by this Constitution may be the autonomous regions under their respective statutes. Jurisdiction on matters not claimed by Statutes of Autonomy for the State whose laws shall prevail in case of conflict, the Autonomous Communities in everything that is not attributed to the exclusive jurisdiction thereof. State law shall, in any case, extension of the right of the Autonomous Communities.
The form of the laws
- Pre-legislative procedure (Law 50/1997, the Government) (with a number of elements).
- Result of a compulsory: parliamentary regulations (texts articulated as a transitional arrangement regulates the process from entry to its publication, additional observations).
- Formal aspects of the laws
- Promulgation and punishment (62nd))
- Legislative technique (Resolution of July 28, 2005).
- Formal clarity and legal certainty (not the occasion for the confusion)
- Rationality language (good use of language)
- Systemic Rationality (consistent with the system)
- Teleological Rationality (effectiveness purpose, effectiveness and efficiency in order to manage well managed resources)
- Ethical rationality (consistent with the principles of the system)
- Publication