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Legal System


The Spanish legal system is a civil law or continental system.

2.1 Sources of the Law.

 

Sources of law  are regulated by the Civil Code.

As stated in art. 1 of the Spanish Civil Code,  the Spanish sources of law are the following:

  • Statutes. Must be understood in the sense of any written rule of law created by the State. It’s the preeminent source, the others are subsidiary sources.
  • Custom. Customary rules are usually non written law and don’t came from the State but the society. Custom needs the existence of a practice and the existence of an opinio iuris that is the general conviction about the obligatory character of a customary rule. It’s only applicable by a judge if there is no applicable law and can not be contrary to morals or public law. Custom against legislation (contra legem) is forbidden by the art.1 Cc.
  • General principles of law. General principles of law are the basic rules reflecting the convictions of a community in respect its organization. General principles of law permeate the legal system and they also inform other sources
Case law issued by the Supreme Court and unlike in Common Law jurisdictions such as the U.S. and the U.K,  is a complementary source of interpretation and application of the law.

The Supreme Court is allowed to decide not only if the if decisions are against the law, but also, if judicial decisions of the lower courts were against the established jurisprudence. The decisions of a court may be appealed if they are not in the conformity with the case law decided by the Supreme Court on the same issue in at least two judgments.

No applicable rule can be derived from legal doctrine. Its not mentioned as a source of law and the Supreme Court has denied this character. Legal doctrine just provides an interpretation or clarification about the other sources of law.However, as everywhere else it provides a very valuable understanding of the current state of the Law in Spain.
 
 

2.2. Types of laws.

 
These are the different types of laws you will find in Spain. They are sorted from most important to less important. Higher ranked laws will prevail should a conflcit between :
  • The Spanish Constitution.It is the suprem law of the nation.
  • International Treaties. International treaties become are passed as laws once they have been signed, ratified and published by government on the Boletin Oficial del Estado.
    If the treaty attributes to an international organization or institution the exercise of competencies derived from the Constitution, the authorization must be established by means of an Organic Law (art. 93).
    If the treaty is of certain matters as political or military nature; affects the integrity of the State or fundamental rights and duties established at Title I of the Constitution; creates financial obligations for the public treasury or involves modifications or repeals some law or requires legislative measures for its execution, then the treaty shall require Parliament’s authorization (art. 94).
    Any other treaty may be signed for the Government who shall inform to the Parliament (art. 94.2)
    Conflicts between the Constitution and a treaty are solved in favor of the Constitution. Any international treaty which contains stipulations contrary to the Constitution shall require a prior constitutional revision. Government or the Parliament may request the Constitutional Court whether this contradiction exists.
  • Organic Law (Ley Organica). Organic Laws are the most promient type of statute. They are regulated at art.81 of hte Constitution and are different from ordinary legislation in two ways:

    • The subject matter of the regulation. Exercise of fundamental rights and public liberties, Statutes of Autonomy, the general electoral system and others provided for in the Constitution must be issued by an organic law (art. 81.1). The subject  matters provided by the Constitution include: ombudsman (Defensor del Pueblo,art. 54 ; Council of State (Consejo de Estado, art. 107); Constitutional Court (Tribunal Constitucional, art. 165) and popular legislative initiative (art. 87.3)

    • The majority requirements for their approval, modification or repeal. Organic laws require an absolute majority of the Congress in a final vote of the entire bill (art. 81.2)

  • Ordinary Law (Ley). Ordinary laws are all the laws whose subject matter is not reserved to organic laws by the Constitution. They require a simple majority of the Congress and of the Senate, with the Congress adopting the final decision.

  • Decree-Law (Decreto-ley; art. 86 SC). They are provisional legislative decisions that Government may issue for extraordinary and urgent matters and rank as laws. Decree Laws may not affect basic institutions of the State; rights, duties and liberties of the citizen regulated in Title I of the Constitution;  the system of the Autonomous Communities or the general electoral law. Decree Laws must be ratified by the Congress, convoked for that purpose if it was not gathered, within a period of 30 days. To put it simple, Decree-laws is the way goverment passes provisional laws without a Parliament vote to address urgent matters.  

  • Legislative Decree (Decreto legislativo). Legislative decrees are dispositions of the Government containing delegated legislation (art. 85 ) and also rank as laws. This legislative delegation must be granted by a Basic Law (Ley de Bases) when its objective is the formation of articled texts or by an ordinary law when is a matter of arranging several legal texts in to a single one (art. 82.2 ). This delegation must be granted to the Government in an express form, for a concrete matter and establishing a period of time for its exercise (art. 82.3). In this cases, goverment makes laws by comission of the Parliament. 

  • Regulation (Reglamento). Regulations are legislation of a lower status. They are not laws.The term Regulation is referred to any general rule dictated generally by the Government. not included in the preceding categories. Art. 97 of  the Constitution gives the Government regulatory power but other constitutional organs of the State may also have regulatory power in order to regulate their own function. For instance: Congress and Senate , the Judicial Comission or the Constitutional Court. Regulations may regulate matters not  covered by a law or develop an existent law. They may create or modify rights and duties of the citizens or just organize administrative activities. Usual names given to regulations are:

    • Decree (Decreto) from the Cabinet.
    • Order (Orden) from a Minister or a Delegate Commission.
    • Instruction (Instruccion) and Orders of Regulation (Circulares) from lower authorities and high civil servants.
A brief note on European Community legislation. In 1986 Spain became a member of the European Community and transferred the exercise of certain domains and State powers. European Treaties and rules produced by the uropean Community, as International treaties are directly applicable as a part of the national system once signed, ratified and published in Spain. Spanish Supreme Court and European Court of Justice have both resolved that any conflict between domestic legislation and the European Community legislation must be resolved by ordinary jurisdiction according the principle of supremacy of Community law. 
 

A brief note on Autonomous Communities legistlation.  Autonomous Communities issue their own legal provisions, in order to organize their institutions and regulate the domains attributed to them by the Consititution. These legal provisions apply only to their own territory.

Autonomous Communities laws are limited on the issues they may regulate. Unlike the U.S, where states have the residual power, Autonomous Communities laws can only regulate those matters that are assigned to the Community by law or the Constitution. Communities have their own Parliaments that produce their own laws.

Communities are not allow to regulate on the exercise of fundamental rights and public liberties, and the Government of the Community is not allowed to use the Decree Law to pass a Law.

 

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