THE SPANISH LEGAL SYSTEM (2015)Apunte Inglés
The Spanish Legal System
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THE SPANISH LEGAL SYSTEM
Established Spain as a social and democratic constitutional state.
-It was adopted in 1978, approved by national referendum.
Form of government = Parliamentary Monarchy *National sovereignty belongs to the Spanish people, from whom all State powers emanate.
Protection of the Human Rights in the Spanish Constitution of 1978: -Fundamental rights and freedoms play an important role in the whole legal system.
-“Fundamental rights and duties” of Title I of the Constitution are divided in 3 types: -Equality before the law -Rights and duties of citizens -Principles informing the social and economic policy Guarantee of protection of the human rights (art. 53 SC): -Rights and liberties recognized in the Constitution are binding for all public authorities.
-Principle of legality — The exercise of such rights and liberties may be regulated only by law which shall, in any case, respect their essential content.
SOURCES OF LAW: -Primary sources: Law/statutes, Customary laws and General Principles of Law.
-Complementary resources — Case-law -Explanatory resources — Legal writings -Relation between State law and law of the Autonomous communities Sources of law: -Interpreted as the origin of the rules of law -Common interpretation in legal theory THE SPANISH CIVIL CODE (1889): -Contains the main sources of the Spanish legal system -Rules concerning the application of law -The interpretation of legal rules -The role of “equity” -Personal, territorial and life-time effect of the laws.
*This group of laws has been referred to as “material constitutional law”.
PRIMARY SOURCES OF LAW -Laws -Customary laws -General principles of law Law —> Meaning all written law emanating from the State (Constitution, ordinary legislation, etc) TYPES OF LAWS: ORGANIC LAWS They regulate specific matters: Development of fundamental rights and liberties, establish Statutes of Autonomy, general electoral system, other laws provided in the Constitution.
*They are under the Constitution.
Same level as ordinary law — the difference is a subject-matter.
INTERNATIONAL TREATIES *They incorporate into the legal system 3 types of international treaties: -Treaties which confer some of the powers of the State on an international organization -Treaties regarding specific matters require the previous authorization of “Las Cortes”.
-Any other treaty not included in (1) or (2).
International treaties are under the Constitution European Union Law has direct effect and supremacy over national law by virtue of the partial cession of sovereignty brought about by the accession to the EU.
ORDINARY LAWS Rules adopted by the Parliament by the procedure established in the Constitution.
-They regulate matters not reserved to organic laws.
-They are adopted by simple majority of the Parliament.
LAW-DECREES Although they are very frequent, they should only be adopted in cases of extraordinary and urgent need.
-Adopted by the Executive.
-Temporary legislative provisions -May not affect the regulation of the basic institutions of the State, the rights and duties of Title I, the system of the Autonomous Communities and the General Electoral Law.
*Must be submitted to approval of the Congress within 30 days in order to ratify or repeal the law-decree.
-If they are ratified, they become ordinary laws.
LEGISLATIVE-DECREES Delegation of the legislative power to the Executive — Have the same hierarchy of ordinary laws.
*The executive is bound by the limits established by the Parliament who delegates its legislative power.
THE DELEGATION OF POWER: -For a specific matter -Expressly allowed by law -For a fixed time limit Delegation can be granted by 2 ways: -Basic law adopted by the Parliament -Ordinary law authorizing for consolidating existing legislation scattered into one (The Executive can reogranise but not introduce new rules).
GOVERNMENT BILLS REGULATIONS = Refers to any general legal rule adopted by the Public Administration or the Executive.
TYPES OF REGULATIONS: -Royal Decrees of the Council of Ministers -Decrees from government of Autonomous Communities -Órdenes, instructions and circulares from authorities and members of the Administration.
CUSTOMARY LAWS Second source of law under Spanish Civil Code, after the Law.
*Custom will only be applied by the judge if there is no applicable law (subsidiary source).
-Customary law cannot be contrary to morals or public order.
-Needs to be approved.
DEFINITION: Customary laws are non-written laws that have the origin in the society, not the State, and there has to be a continuous and regular practice and opinio iuris.
GENERAL PRINCIPLES OF LAW.
General Principles of Law are basic rules reflecting the convictions of a community in respect of its organization.
-Modern constitutions include values considered fundamental for the community.
DOUBLE FUNCTION OF THE GPL: 1.They are source of law (through subsidiary).
2.They inform the other sources.
Example: The principle of equality —> Recognized in the article 1 of the Spanish Constitution.
COMPLEMENTARY SOURCES: Case-law The common law is a system of case law.
In the Spanish law the judicial decisions have a highly persuasive value, independently of their formal recognition as a source of law.
*The case-law will complement the legal system and is the tool by which the uniform application of the sources of law is guaranteed.
-The duty of the judiciary is to ensure that the Supreme Court creates case-law and the lower courts respect it.
DECISIONS OF THE CONSTITUTIONAL COURT.
-The only interpreter of the Constitution -Assesses the conformity of the sources of law with the Constitution -The Constitutional Court controls the compliance of legislation with the Constitution -The Constitutional Court can declare null and void a statute which is unconstitutional — This interpretation is superior to the interpretation of the legislator.
-The constitutional decisions have to be applied by the lower courts -The constitutional courts have the same level as the Constitution in the hierarchy of sources.
Doctrina or legal writings. They provide clarification and interpretation of the primary sources.
*They are not a source of law.