2.

THE SOURCES OF LAW IN THE SPANISH

LEGAL SYSTEM

LESSON 3. LEGAL SYSTEM AND SOURCES OF LAW

LEGAL SYSTEM AND SOURCES OF LAW: CONCEPT

There is not unitary concept of law
The thesis of the generality of the law is due to the theorical contribution of Rousseau,
which configures him as an expression of the general will and which will have its
constitutional formalization in the Fren revolutionary texts, such as art. 6 of the
Deliberation of Rights of 1789 and art. 53 of the Jacobean Constitution of 1793.
A second moment in the process of historical evolution of the concept of law is
determined by the approach of parliamentary monism and Germanic dualism.
The thesis of parliamentary monism implies that:
 The law is the supreme norm of the juridical order, producing an
identification between the terms law and constitution.
 The law can deal with any matter, and there are no areas immune to its
action
 The principle of legality is configured as a positive link with the public
powers, and it is meaningless the existence of a reservation of law.
The thesis of the dualist system responds to the theorical postulates of the monarchical
principle, adopting a compromise between the revolutionary principles and those of the
Old Regime, leading to the determination of the material concept of law formulated by
Laban on the Prussian crisis of 1862.
THE NOTION OF RESERVATION OF LAW
There is no general reservation of law but concrete reservations of law. This makes us
distinguish between “absolute reserve”, which implies the impossibility that certain
matters can be regulated by regulation; and “relative reserve”, which makes independent
and not merely executive.
It does not only refer to the subjects reserved to each law but also to the procedures for
the elaboration of such laws.
THE NOTION OF FORCE, RANK, AND VALUE OF LAW
In summary with the idea of force of law we allude to the linkage of all subjects to the
law because it is an expression of an act of sovereignty.
On the other hand, the rank of law refers to the position that occupies the norm in the
normative hierarchy.
Value of law refers to those acts of the Parliament which without being law, have the
value of them so they are exempt from any judicial control, except one exercised by the
Constitutional Court.
Today a concept of law has been elaborated in accordance with the democratic principle
as a legal norm subordinated to the Constitution, approved by the Cortes Generales or
legislative Assemblies of the Autonomous Communities, according to a determined
procedure and with independence of whatever would be its content.

Nowadays, the regulation of the sources of law is situated in the field of the theory of
the Constitution. A conceived by the jurist Kelsen, the Constitution is the regulatory
norm of the process of creation of norms by the superior organs of the state.
The very configuration of the Constitution as a supreme judicial norm presupposes that
it becomes not only an authentic source of law, but also in the delimiting norm of the
system of sources. Before the entry into force of the Spanish Constitution of 1978, the
sources of law were regulated by the Civil Code whose art 1.1 stated that: “The sources
of the Spanish legal order are the law, custom and general principles of law”.
This regulation of the Civil Code has not been repealed but must be interpreted
according to the Constitution, concretely in its article 149.1 8a, where reference is made
to the sources.

The concept is not unanimous in doctrine. Thus, the expression sources of law can have
various meanings:
 Sociological sense understood as the set of factor that effectively lead to the
creation of norms, which implies a sociological conception of the same . The
very configuration of the Constitution as a supreme judicial norm presupposes that it becomes not
only an authentic source of law, but also in the delimiting norm of the system of sources. Before the
entry into force of the Spanish Constitution of 1978, the sources of law were regulated by the Civil
Code whose art 1.1 stated that: “The sources of the Spanish legal order are the law, custom and
general principles of law”.
 Legal sense that determines a triple distinction. The sources of law would be:
o That group of subjects or acts to which the legal system attributes the
power to create norms. These are called “sources of production”
o The rules that qualify the facts, what would be denominated like
“sources on the production”
o The forms through which the legal norm is expressed. This would be
the sense established in art. 1.1 od the Civil Code.
In a material sense, the term “source of law” refers to the organs from which the rules
that make up the legal system emanate.
In a formal sense, would be the historical factor that influence the creation of law.
PRINCIPLES FOR THE ORGANISATION OF SOURCES OF LAW
In a legal sense, source of the law is each social force with power to create norms. Each
legal system has its own system of sources although there is a certain homogenization in
two aspects:
In the States with influence of the Roman-Germanic-Continental Law, the written law
or not written law prevails. This predominance of the written source is the result of the
French Revolution, which imposes itself as a guarantee of citizens in the nineteenth
century constitutionalism, despite the effort of Savigny´s historical school to maintain
the “spirit of the people or Volkgeist.
Irrespective of whether the law is expressed in written forms or not as established by the
Common Law Anglo-Saxon tradition. In certain supranational areas there has been a
certain unification in listing the sources of law (understood as law, custom and the
general principles).
We can distinguish three different normative types:
1. WRITTEN SOURCES
 CONSTITUTIONAL LAW, which constitutes the budget of validity
and effectiveness of hierarchical lower standards and in general of the
whole system (principle of constitutionality). Here the protestas
normandi has the constituent power exclusively.
 THE LAW IN ITS DOUBLE MANIFESTATION: as “organic law”
and ordinary laws” (principle of legality). The Norman protests are
exercised by Parliament.
 REGULATORY ISSUES: It is exercised by the Government and the
rank of this rules is always inferior to the law (regulatory principle).
2. UNWRITTEN SOURCES
 THE CUSTOM: understood as “constant and continuous social use”
or “social belief that is obligatory”, there is no law applicable to the
case.
 GENERAL PRINCIPLES OF LAW: considered as “non-
fundamental evaluation criteria such as good faith”.
3. INDIRECT SOURCES
 INTERNATIONAL TREATIES: written agreements between
subjects of International Law and those who are governed by it. They
can be adopted either between two or more States, between States
and International Organizations, or between several International
Organizations.
 JURISPRUDENCE: is the doctrine or set of judgments emanating
from the courts and, in particular the Supreme Court in interpret and
apply the law, custom and general principles of law. It is necessary to
clarify that in this case, with the expression jurisprudence we d not
refer to the specific jurisprudence of the Constitutional Court, that we
can define like authentic source of the Right.
LESSON 4. THE SPANISH CONSTITUTION AS A SOURCE OF LAW
CONCEPT OF CONSTITUTION
Before the entry into force of the Spanish Constitution of 1978, the sources of law were
regulated by the Civil Code whose art. 1.1. stated that: “The sources of the Spanish legal
order are the law, custom and general principles of law”.
This regulation of the Civil Code has not been repealed but must be interpreted
according to the Constitution and particularly in its article 149.1 8a where reference is
made to the sources.

THE SPANISH CONSTITUTION AS THE SUPREME LEGAL NORM

AND AS A SOURCE OF LAW

THE SOURCES OF THE SPANISH ORDER

 Law: rules issued by the Legislative Branch. In addition to the law itself, we
must include the royal decrees, circular instructions, real orders…
 Custom: norm created by the People and externalized through a repeated and
constant practice of a certain activity. It is the norm imposed by the social use.
 General Principles of law: Those are more general normative statements that are
part of the legal system. They are the manifestation of criteria of conduct with
social transcendence, which are imposed by their own persuasive force without
reference to concrete assumptions of application.

CONTENTS AND INTERNAL STRUCTURE OF THE CONSTITUTION

CONTENTS OF THE SPANISH CONSTITUTION

 THE ORGANIC LAWS
ART. 81: organic laws
Those relating to the development of fundamental rights and public liberties,
those which established Statues of Autonomy and the general electoral system,
and other laws provided in the Constitution.
The approval, modification or repeal of the Organic Law will require a majority
absolute of the Congress, in a final vote of the whole project.
 THE ORDINARY LAW
Our Constitution contemplates diverse ordinary laws heterogeneous:
o LAWS OF PLENARY AND LAWS OF COMMISSION: the article 75 of
the SC provides for the possibility for the Chambers to delegate to the
Standing Legislative Committees the adoption of draft laws and bills.
o BUDGET LAWS: It is special modality provided in article 134 of the SC.
 o POSSIBLE LAWS RATIFIED BY REFERENDUM, considered as the
manifestation of the electoral body on a text approved by a legislative body.

 THE DECREES LAWS

They are legislative provisions that can only occur in cases of extraordinary and
urgent need.
They are powers of the Government that enjoy the same normative range as the
laws as the laws but not of the same nature.
There must be a connection between the defined situation and the measures in
which the decree-law is adopted.

 THE LEGISLATIVE DECREES

They are rules with force of law dictated by the Government, by virtue of an express
authorization of the Cortes denominated legislative delegation.
ART. 82: The legislative delegation
1. The Cortes Generales may delegate to the Government the power to issue
rules with the force of law on specific matters not included in the foregoing
article.
2. Legislative delegation must be granted by means of a basic law when its
purpose is that of drawing up texts comprising various articles, or by an ordinary
law when it is a matter of consolidating several legal texts into one.
3.Legislative delegation must be expressly granted to the Government for
specific purposes and with a fixed time limit for its exercise. The delegation
shall expire when the Government, having availed itself thereof, has published
the appropriate regulations. It may not be construed as having been granted
implicitly or for an indeterminate period. Nor shall subdelegating to authorities
other than the Government itself be authorized.
4.Basic laws shall precisely define the purpose and scope of legislative
delegation, as well as the principles and criteria to be followed in exercising it.
5. Authorisation for revising legal texts shall determine the legislative scope
implicit in the initiative, specifying if it is restricted to the mere formulation of a
single text or whether it covers regulating, clarifying, and harmonising the legal
texts that are to be consolidated.
6. Initiatives may establish additional control formulas in each case, without
prejudice to the jurisdiction of the Courts.

ART. 86: Acts and their validation

1. In cases of extraordinary and urgent need, the Government may issue
temporary legislative provisions which shall take the form of decree-laws, and
which may not affect the regulation of the basic State institutions, the rights,
duties and liberties contained in Title 1, the system of the Autonomous
Communities, or the General Electoral Law.
 2. The decree-laws must be submitted forthwith to the Congress of Deputies,
which must be summoned for this purpose if not already in session. They must
be debated and voted upon in their entirety within thirty days after their
promulgation. Congress must expressly declare itself in favour of ratification or
repeal within said period of time, for which purpose the Standing Orders shall
establish a special summary procedure.
3. During the period established in the foregoing clause, their passage through
the Cortes may be the same as for Government bills, by means of the emergency
procedure.

TYPOLOGY OF CONSTITUTIONS: SPECIFIC REFERENCE TO 1978

SPANISH CONSTITUTION

 GRANTED, AGREED OR IMPOSED CONSTITUTIONS

o A Constitution is granted when the constituent power resides in the
Monarch and he, graciously, grants to its subjects a series of rights, thus
self-limiting its own power.
o A Constitution is agreed when the constituent power resides I two
subjects and when these two subjects must agree on a text.
o Our Cadiz Constitution of 1812, our famous “pepa” will be imposed,
and this is a true reflection of how the constituent power resides in the
nation, later in the town, and the constitutional text is imposed to a King
who is also bound by its prescriptions.

 WRITTEN OR CUSTOMARY CONSTITUTIONS

The constitutions can, secondly, be classified in writings and customary ones,
depending on whether they enjoy an articulated definition or are kept in the
memory of a people, fruit of the existence of customs and conventions that make
their positivization unnecessary.

 FLEXIBLE AND RIGID CONSTITUTIONS

o A Constitution is flexible when, in order to proceed with its reform, it is
not necessary to resort to a different procedure from the one established
with an ordinary character for the creation and modification of
legislation.
o A Constitution shall be rigid when, on the contrary, it necessitates for its
reform an aggravated procedure that shows the importance of the
modification to be made and that the active subject of the first decision
was the constituent power.

 BRIEF OR EXTENSIVE CONSTITUTIONS

In primitive constitutionalism, the tendency, clearly exemplified in the three
hundred and eighty-four articles of our Constitution of 1812, was to be lavished
in its extension. In a vision of breaking with the system established in the Old
 Regime, the motives were based on the true need to record a totally novel model
that was to be made explicit for its knowledge and understanding.
It is also true that the shortest and oldest constitution in the world, the American
Constitution of 1787, consists only of seven articles, which are very developed.
However, this classification will be meaningless unless brevity involves a
limitation of content and extension consists in the production of a series of
precepts that have nothing to do with the essence of the constitutional
organization.

 ORIGINAL OR DERIVED CONSTITUTIONS

It is obvious to say that at the beginning all the Consitutions brought some new
facts to the organization of powers, as did the French Constitution of 1791 and
1793 with a representative system, against a direct democracy more in the line of
Rousseau; the US Constitution of 1781 for its part provides federal territorial
form applied to large tracts of land. In another sense the Soviet constitutionalism
or the one of the third world countries appear as originals.
It is true that constitutional novelties usually appear in periods of great
revolutionary changes, of great changes in political regime, rather than in
constitutional text.

 NORMATIVE, NOMINAL, AND SEMANTIC CONSTITUTIONS

o They are normative when the law orders the political life, when what the
Constitution establishes is fulfilled in the practice.
o A Constitution is considered nominal when. Although it is legally valid,
it is not effective in practice since it is dissociated from society.
o It is called semantic to the fundamental norms that receive such
denomination but that really serve to mask the reality.

 IDEOLOGICAL OR NEUTRAL CONSTITUTIONS

Constitutional texts are also classified, according to whether or not they are
exponents of a given ideology, in ideological or neutral Constitutions, the latter
being those that established a mere procedure of making general decisions.

At the present time, classifications are also carried out, considering much more specific
data such as the form of territorial organization, the form of Head of State or the
existing relationship between powers. Thus:
 Constitutions unitary, federal regional or autonomous.
 Presidential, parliamentary, and directorial constitutions.
 Constitutions monarchical or republican.

CONSTITUTION OF 1978
Imposed or popular because it obeys to the democratic principle (art. 1.2 SC), without
considering that the Crown participates in the constituent power.
Written and in a single document, in front of the Francoist system, based on the
successive publication of different texts of “fundamental” rank.
Our constitution seems rigid, reaching levels of amount intangibility with respect to the
material areas protected by the reform procedure established in art. 168 SC.
It does not appear either as an original constitution but, on the contrary, our Magna
Carta assumes influences of both international law (art. 10 DSC), patriotic
constitutionalism, as well as those derived from foreign constitutionalism. Of particular
mote are the contributions of constitutional law from Germany. From Italy we import
the transformer character that the “Basso clause” established in art. 3 of the Italian
Constitutions, which is collected-with nuances- in 9.2 CE, together with the conception
og the regional state. The northern monarchies also influence the configuration of the
functions of the Monarch, while in France the concept of organic law is accepted,
although in a different way, since in the neighbouring country they enjoy a hierarchical
rank superior to that of the ordinary law.
On its extension, it may be said that it is, after the three hundred and eighty-four articles
of the Cadiz of 1812, the most extensive Spanish constitutional text of the entire history
of constitutionalism. It may also be said that there are certain aspects that are not
regulated (the system of sources, for example) and that others have come to “de-
constitutionalize). Thus, despite its extension, our Constitution appears as unfinished, as
incomplete, as open.
There is no doubt that it is a normative constitution (art. 9.1 SC). In front of what
happened with the text of our Second Republic, it is a constitution that may not enjoy
the same professorial character than the previous one, but that it is much more linked to
the reality it intends to regulate.
Ideological and utilitarian? Every constitution contains specific ideologies, which does
not mean that this ideology entails a dependence, determines of the legal mechanisms
that appear as mere instruments to achieve the exclusivity of the ideology. In our
democratic system, in addition, due to the second paragraph of art. 9 SC, we find a
transformational potentiality of the system that makes the ideology underlying the
constitutional background. This system can be taken to more leftist areas, within the
limits of a representative democratic system where the market economy prevails (art. 38
SC).
As for the territorial structure of the State, the Spanish system advocates a system that
overcomes the old confrontation between the unitary and federal states. There is a new
attempt to solve an atavic problem, such as the territorial one, by configuring an
autonomous State (art. 1.2, 2 and Title VIII SC), which advocates a third genre that
assumes at the same time the unity of the State and its realization within a political
decentralization, and not merely administrative, which now exceeds the competence
level of some federal States.
Taking into account if the Head of State is provided by choice or according to the
hereditary principle, our Constitution advocates a Monarchy that denominates
parliamentary and which qualifies as “political form”, according to the doctrine, to
honor the important role of the current Monarch in the political transition.
And as it would not fit otherwise, appears in our Maximo Text a system of relationship
between the powers, a parliamentary system. This system is the only one in which the
Crown can survive, being at the same time the most convenient after the Francoist
power concentration which did not wish to fall into an assembly system.

THE CONSTITUTIONAL REFORM

Most of the current Constitutions foresee their own reform.
All the Constitutions are born with a pretension, more or less explicit permanence and
even perpetuity. However, reality shows that constitutional changes are relatively
frequent.
These changes do not occur solely through the technique of constitutional reform, since
non-articulated transformations can occur through conventions, use and constitutional
interpretation.
For this reason, the reform cannot be considered simply as a mechanism of
constitutional change, but rather as an instrument of defence of the Constitution itself,
which implies the establishment of an ad hoc procedure for its modification, which is
configured as the supreme law, the basis of all system of constitutional guarantees.
One can distinguish between constitutional mutation and reform:
 THE CONSTITUTIONAL MUTATION:
It implies a transformation in the reality of the social structure or political power
without that transformation updated in the constitutional text, which remains
unchanged.
 THE CONSTITUTIONAL REFORM:
In formal sense, it is the technique by which the constitutional text is modified.
In a material sense, it is the result of the procedure of amendment of the
constitution.

With regard to its position in the normative hierarchical scale, it seems logical the
proclaim the supremacy of the Constitution over the law of constitutional reform itself,
raiding the issue of possible constitutional control over the laws of constitutional
reform.
The technique of constitutional reform may involve a progressive transformation of the
constitutional text as least to prevent modifications in the opposite direction. However,
this is not its main function because it seems designed to adapt the constitution text to
those transformations that are occurring in reality.
The reform of the Spanish Constitution:
1. The first use of constitutional reform mechanism occurred in 1992, as a
result of ratification process of the Treaty on European Union, in order to
allow passive suffrage in local elections to any person belonging to a
Member State of the Union.
2. The second reform of our constitution took place 2011, in a surprising and
urgent way, because in one month all the formalities of the reform were
completed. This reform had as object the constitutionalization of the
principles of budgetary stability and budgetary balance, and was imposed by
certain European authorities, which forced to introduce into the
constitutional texts the rules of budgetary stability approved by the EU.

LESSON 5. THE SOURCES OF LAW IN THE SPANISH LEGAL SYSTEM

SOURCES OF CONSTITUTIONAL LAW

Before the entry into force of the Spanish of 1978, the sources of the law were regulated
by the Civil Code whose art.1.1 established that: “The sources of the Spanish juridical
order are the law, the custom, and the general principles of law.
This regulation of the Civil Code has not been repealed but must be interpreted
according to the Constitution and in particular in its article 149.1 8a where reference is
made to the sources.
Nowadays the regulation of the sources of the law is situated in the field of the theory of
the Constitution. As conceived by the jurist Kelsen, the Constitution is the regulatory
norm of the process of creation of norms by the superior organs of the State.

The SOURCES of the Spanish order are:

LAW: rules issued by the Legislative branch. In addition to the law itself, we must
include the royal decrees, circular instructions, real orders…
CUSTOM: norm created by the people and externalized through a repeated and
constant practice of a certain activity. It is the norm imposed by the social use.
GENERAL PRINCIPLES OF LAW: those are more general normative statements
that are part of the legal system. They are the manifestation of criteria of conduct with
social transcendence, which are imposed by their own persuasive force without
reference to concrete assumptions of application.

Other sources
REGULATORY AUTHORITY: the generality of the doctrine distinguishes between
the so-called executive regulations, which are those that occur in the execution of a law,
to which they are linked, and independent regulations, which occur without there being
a previous law to execute.
It also speaks, according to the subject matter, of normative or legal regulations, which
are those that create a new right or modify it, affecting the rights and duties of citizens;
as well as administrative or organizational regulations, configured as a power of self-
disposal of its respective holder.

JURISPRUDENCE: the art. 1.6 of the Civil Code does not configure jurisprudence as
a source of law, but only attributes a function that complements the legal system.
When the Civil Code alludes to jurisprudence, it refers to that of the Supreme Court,
which, by virtue of the system of cassation, is obliged to elaborate a doctrine on
interpretation and application of the law that is imposed on all judges and tribunals, and
that conditions their subsequent decisions.

THE CONSTITUTIONAL CUSTOM: the role of custom is to fill gaps within the
corresponding legal systems, to adapt existing regulations to the social reality of the
moment and to guide the application of both precepts.
The doctrine considers that we are before a constitutional custom when basically two
elements are given, on the one hand the constant and uniform repetition of an act, and
on the other hand it requires that this repetitive action is inspired by a conviction of
compulsion.
The consideration of custom as a source of law finds its legal basis in inter-private
relations, and hences its regulation in the Civil Code.
The custom is delayed in the scope of the sources of the right, although the increasing
complexity and dynamism of the constitutional law do not lose its condition, since there
are certain areas such as the case of parliamentary law, where still the custom, in this
case praeter legem, may have a certain scope of application.

THE GENERAL PRINCIPLES OF LAW

- The principle of constitutionality
- The principles of legality and normative hierarchy
- The principle of publicity of the rules
- The principle of non-retroactivity of non-favorable or restrictive provisions of
individual rights
- The principle of legal certainty
- The principle of interdiction of the arbitrariness of public powers
- The principle of public responsibility