The Spanish Constitution of 1978: A Fundamental Law
The Constitution as the Fundamental Rule of Law
The 1978 Constitution is the supreme law of Spain. It is directly applicable and claims to be the fundamental rule of law, meaning it is superior to all other laws (Lex Superior) and intended to be permanent (Lex Perpetua).
The Constitution as Lex Superior
The Constitution establishes the state’s monopoly on the sources of law. It is the norma normarum (standard of rules), meaning all other laws must be created according to the procedures and bodies it establishes. It is the source of the sources of law.
Constitution as Lex Perpetua
The Constitution embodies a set of values crucial to the form and mode of political organization. These values, shared by Western constitutionalism, are incorporated into the Constitution with the belief that they are essential for the political organization to rely on permanently.
Consequences of the Constitution as Lex Perpetua
- Precedence: The Constitution takes precedence over all other legal norms, enforced by the Constitutional Court.
- Rigidity: To maintain its preeminence, the Constitution establishes its own reform process.
- Principle of Consistent Interpretation: All legislation must be interpreted in accordance with the Constitution.
- Repealing Provision: The Constitution repeals any pre-existing laws that contradict it.
Values and Constitutional Principles
Constitutional Values
Article 1 lists the values of freedom, justice, equality, and political pluralism. These values are supra-values, meaning the Constitution must be applied according to them.
Constitutional Principles
Political Principles
Article 10.1 lists the principles of the dignity of the person, inviolable rights, free development of personality, respect for the law and the rights of others, and social peace.
Article 9.2 mandates public authorities to promote conditions for effective freedom and equality and facilitate citizen participation in political, economic, cultural, and social life. This article allows for positive discrimination only if it satisfies the principle of proportionality.
Legal Principles
Section 9.3 outlines legal principles concerning the structure and characteristics of the system and the actions of authorities.
- Principle of Legal Security: Predictability in the actions of public authorities, especially in the interpretation and application of law.
- Principle of Legality: All government actions must be based on law, with the Constitution as the ultimate authority.
- Hierarchy Principle: Establishes a clear hierarchy of legal norms.
- Principle of Publicity of the Rules: All laws must be publicly disclosed in an accessible manner.
- Principle of Non-Retroactivity of Punitive Rules: Criminal and administrative law cannot retroactively apply harsher penalties.
- Principle of Responsibility of Public Authorities: Public authorities are accountable for their actions and must compensate citizens for damages caused by violations of the Constitution or laws.
- Principle of Prohibition of Arbitrariness: Public authorities must act in the public interest and within the legal framework, prohibiting arbitrary conduct.
Scope and Content of the Fundamental Rule
Article 9.1 states that citizens and public authorities are bound by the Constitution and other legislation. This distinguishes the Constitution as part of the legal system while simultaneously placing it above all other laws. It also emphasizes that all state powers, including judges and courts, must uphold the Constitution.
The Influence of the Constitution on the Rest of the System
All laws must be interpreted in accordance with the Constitution. The Constitution serves as the dominant norm in the legal order, guiding the interpretation and application of all other laws. The doctrine of the Constitutional Court is of paramount importance in this process.
Constitutional Jurisprudence
The Constitutional Court is the supreme interpreter of the Constitution. It is part of the judiciary but is subject only to the Constitution and its own Organic Law. It acts as a negative legislator, striking down laws that do not conform to the Constitution.
The Block of Constitutionality
The block of constitutionality encompasses not only the text of the Constitution but also a set of rules that develop and supplement it. This includes Statutes of Autonomy, framework laws, Organic Laws, harmonization laws, basic laws, and international treaties related to fundamental rights. These rules are essential for understanding and applying the Constitution in its entirety.