The Spanish Constitution: Fundamental Rule and Its Influence on the Legal System
The Constitution: Fundamental Rule
The first question is whether the 1978 Constitution is a constitutional law, i.e., is it valid and effective if applied immediately? The answer is yes; it is directly applicable and simultaneously claims to be the supreme rule of law.
The character of the constitution as the fundamental rule of law means that the constitution is proclaimed as a rule superior to all other rules (Lex Superior) and does so with a claim to permanence (Lex Perpetua).
The Constitution as Lex Superior
The state attempts to monopolize the sources of law; therefore, a rule will not rule until the state recognizes it as such. This is stated in the Constitution. Therefore, the Constitution becomes the norm normarum (standard rules), which means that rules are rules only if they are developed through the procedures and bodies established by the Constitution. The constitution is the source of the sources of law.
Constitution as Lex Perpetua
According to the ideological concept, constitutions incorporate a set of values that will be crucial in deciding the form and mode of political organization. These values are shared by Western constitutionalism and are not exclusively Spanish. These values are incorporated in the constitution because there is the conviction that values are so important that the political organization has to rely on them permanently, perpetually, forever.
The consequences of considering the Constitution as lex perpetua are:
- Precedence: The Constitution requires that it be above the rest of the legal norms. This is achieved with the existence of the Constitutional Court.
- Rigidity: To be effective, preeminence requires rigidity. This constitution establishes its own reform process.
- Principle of consistent interpretation: The constitution is not only a source of sources but also a direct source of law. Other legislation must be understood as provided in the provisions of the Constitution.
- Repealing provision: The constitution is a derogatory force of everything that opposes it, narrowly repealing the foregoing that object to it and preventing the further effect of all that contradicts it.
The Values and Constitutional Principles
The constitution as a fundamental rule establishes a series of constitutional values and principles which are essential in the realization of the general legal order.
Constitutional Values
These are listed in Article 1 and are the values of freedom, justice, equality, and political pluralism. They have a supra-value, i.e., the Constitution applies according to these values.
Constitutional Principles
Political principles: These are listed in Article 10.1 and include the dignity of the person, the inviolable rights which are inherent, the free development of personality, respect for the law and the rights of others, and of social peace.
Article 9.2 corresponds to the public authorities to promote conditions for freedom and equality to be effective. They must also facilitate the participation of all citizens in political, economic, cultural, and social life. This article makes a positive discriminatory rule constitutional only if it satisfies the principle of proportionality.
Legal principles: These are contained in Section 9.3. They concern the structure and characteristics of the system over the actions of the authorities.
- Principle of legal security: This is the predictability of the performance of public authorities, especially the interpretation and application of law by public authorities, judges, and courts.
- Principle of legality: The legislature must obey its own laws, but it can change the limit of its subjection to the constitution. More than a rule of law, this is a constitutional principle: the primacy of the constitution on the organization and the public authorities. The executive and the legislature are subject to the constitution. The judiciary is subject to the rule of law. For if a court finds that a law to be applied is contrary to the Constitution, it must raise the issue of unconstitutionality to the Constitutional Court.
- Hierarchy principle
- Principle of publicity of the rules: All rules must be publicly disclosed in a formal means known and accessible. Ignorance of the law is no excuse, but no rights exist which have not been published.
- Principle of non-retroactivity of punitive rules that are not favorable or restrictive of individual rights: Art 9.3. Although the general rule is the possible retroactivity of the rules, criminal and administrative law establishes the non-retroactivity of penalties as unfavorable. It prevents the action punished by harder standards than those in force when the offense was committed. It follows the principle that prevents a harsher penalty provision from applying after the same has been replaced by a more favorable offender. Rights to respect fundamental rights are recognized in Title I of the EC. Once certain rights are acquired, the administration cannot restrict them, only extend them.
- Principle of responsibility of the public authorities: Public authorities must act within the constitution and laws. If they violate the order, they will be sanctioned and shall indemnify the benefit of the citizens affected by both injury to private property or rights, as for damages caused by judicial error. This principle requires that the legislative requirement to include mechanisms for accountability of public authorities.
- Principle of prohibition of arbitrariness: This proscription embodies the proceedings without any justification or arbitrary execution of public powers. Public authorities can only act in the public interest. Acting in accordance with the legal system to exclude arbitrary conduct by all public authorities.
Scope and Content of the Character of Fundamental Rule
This art. 9.1 CE: citizens and public authorities are bound by the Constitution and other legislation.
This article, on the one hand, explicitly distinguishes the constitution from the rest of the legal system. This distinction is the contemplation of the constitution as part of the legal system and at the same time unlike the rest of the legal system.
On the other hand, this article subjects the law enforcement not only to citizens but also to all public authorities. This means that no state power can be disconnected from the constitutional mandates and, therefore, that judges and courts have to implement the constitution.
We must make a clarification that the Constitutional Court, which is a state power, is a body that is granted the monopoly to declare laws unconstitutional, but by no means a monopoly of implementing the constitution.
There are parts of the constitution that are inexcusable and direct application by judges and courts because they do not need any intermediary to be law immediately applicable law. This occurs with Chapter II of Title I (and further reinforced the first section). Although there are parts that need the existence of legislation that develops as with Chapter III of Title I: guiding principles for social and economic policy.
There is also a derogation clause located at the end of the Constitution and divided into three sections:
- The first two paragraphs mention some rules expressly repealed by the constitution.
- The third paragraph provides for a general derogation clause and indeterminate: are repealed provisions contrary to the provisions of this Constitution. This means that part of the legal system before the establishment that opposes it is affected by what is called unconstitutional occurring. In the event that a lower standard than law contradicts the constitution, the judge struck down. If it is a rule with force of law, the court may repeal it, but certainly, it will go to the Constitutional Court.
The Influence of the Constitution on the Rest of the System
Any law should be interpreted according to the constitution. However, the Spanish legal system is very different rules, so it is often the existence of contradictory rules and even incompatible. If the only technique that would use the system to expel the rules that seem difficult to fit constitutional order would have to expel a large number of legal rules, and there would be many gaps. One way is to remove various bird that a relatively small number of rules (only the absolutely insurmountable) and try to save the others by its interpretation to the constitution. Consequences:
- The rules must be interpreted in relation to its context. The constitution is the most important context.
- The principle of interpretation prevails not only in the declarative interpretation (taking into account the wording of the rule) but also integrative interpretation (to cover gaps in the legal system).
- You cannot make an interpretation that leads to an unconstitutional result.
- The constitution is what the interpretive technique is called dominant norm in the realization of the legal order.
- The doctrine of the Constitutional Court is of paramount importance.
The Constitutional Jurisprudence
The Constitutional Court is the supreme interpreter of the Constitution and is characterized by:
- It is part of the judiciary, subject only to the Constitution and its own regulatory Act (Organic Law of the Constitutional Court), as if it were subject to all of the legal system, it would have to abide by it and therefore could not annul the constitutional requirements.
- Because it says it is a negative legislator. This means that as the legislature passes laws, the Constitutional Court’s order to expel those who do not respect the Constitution.
The Constitutional Court has a monopoly to declare the unconstitutionality of the rules with the force of law, but this monopoly is exercised from previous reasoning that is understanding that the legislature does not intend to make laws unconstitutional. For this reason, in the constitutional jurisprudence, it is of great importance to the interpretation based on the search for a constitutional result.
Interpretative judgments are those in which the interpretation is that the rule is considered constitutional and therefore stay within the law. The law remains subject to the interpretation of how to read the Constitutional Court, i.e., it determines how judges and courts must”understan” the Constitution when applying the law.
Constitutional Court limitation: It is unable to act on its own initiative but only at the request of those who have standing to appeal.
The Block of Constitutionality
Not every constitutional right is in the text of the Constitution, but there is a whole set of rules that incorporate constitutional law and are also developing and supplementing the Constitution, the so-called”block of constitutionality”
For this reason, the Spanish law in article 28 of the OLCC requires the Constitutional Court to the analysis of conformity with the Constitution of a law, shall, in addition to the constitutional requirements, all those laws that form the constitutional bloc and are:
- Statute of Autonomy.
- Laws framework of delegation of legislative powers.
- Transfer Organic Laws
- Law Harmonization
- Basic laws of the State
- Laws of delimitation of powers in any particular subject.
But if we talk about the constitutional bloc broadly, we also include interpretative judgments of the Constitutional Court and international treaties to which it refers to Art 10.2 of the Constitution dealing with fundamental rights.