Unit 1 Legal System

1.- Legal System and Legal Rules:

The law arises as an instrument to organise the society. The law establishes rules of conduct as
to how individuals have to act with each other, and regulates how the differences between
them have to be solved. This is known as the unity of the Legal system, therefore; it consists in
a system of legal rules established to regulate co-existence, and it’s binding for it is imposed by
the controlling authority empowered to do so, such as the judge who represents the State in
the role of the guarantor of the legal system.

The more complex a society becomes, the more complex its legal system. It’s a that moment
when the different bodies of Law appear. On the one hand the different fields, and on the
other one the difference between the Public law and Private law.

- Private Law: Handles legal issues of the relationships between individuals in the same level.
Also applies to cover the legal relationship with Authority when it isn’t acting as Potestas.

- Types: International Private Law, Civil Law & Commercial Law.

- Public Law: Regulates the organization of the State and acts as the defender of legal order.
Its aim is to protect the general interest of society.

- Types: Administrative, Penal, Internal Public, Procedural, Tax & EU, laws.

The distinction between Private law and Public law is been debated since Roman times. They
used to defend that the Public law is the one related with the conflicts of the State, while the
Private law only implies the individuals’ interests. This distinction bases the difference on, the
interest protected by the public law and the private one, is that of the citizens. This division is
known as the Interest Theory.

On the same way, these two kinds of laws could also be divided as the position of the subjects
involved during the transaction. The two positions to be taken are the equal and the dominant.

1.1.- Civil Law: Regulates general Private Law that hasn’t been assumed by other
fields, and most of the rules regarding it are contained in the Civil Code, in exception
of: Foundations and Associations, Intellectual Property, Horizontal Property, Consumer
Protection and Mortgage Law.

It is completely known, that the regulation between individuals has changed with the
time. The current Civil Law emerges from the French revolution, although in the recent
years there have been a development to modernize it. The legal renewal arising from
the French revolution leads toa Civil Law comprising the legal rules which are closer to
the human beings. It compromises the person and its ability to hold and exercise legal
rights, the possibility and aptitude to acquire and enjoy rights and things, and to
undertake economical transactions, the familiar relationship and even the regulation
of personal and patrimonial consequences of someone’s death. Most of these rules are
contained in the Civil Code.

2.- Sources of Law: (Rights must be exercised pursuant to the requirements of “Bona Fide”)

- Application of Legal Provisions: Written laws shall enter into force 20 days after publication
in the Official State Gazette, and shall be repealed by subsequent written laws and can’t have
retroactive effect, unless otherwise provided therein.
- Effectiveness of Legal Provisions: Ignorance of the laws doesn’t excuse from compliance
therewith and the renunciation of any rights recognized therein shall only be valid if they don’t
contradict the public interest.

- Principles applying in Private Law:

- Will Autonomic: For being legally applicable, has to be “free will” (without coercion or
deceit) and need to have sufficient Legal Capacity to act in the legal transaction.
- Principle of Equality: Applicable in Public Law and in Private Law. In Private Law, norms
try to cover the individuals’ interests, meanwhile in Public Law tries to cover public
interest.

- Direct Sources: (Articles 1.1, 1.2 & 1.3 [respectively] of the CC)

- Written Laws: Any provision which contradicts another of higher rank shall be invalid.
- Custom: Only applicable in absence of applicable written laws, provided that they
aren't contrary to morality or public order (should be duly proven).
- General Legal Principles: Only applicable in absence of applicable written laws without
prejudice to the fact that they contribute to shape the legal system.

- Indirect Sources: (Articles 1.5 & 1.6-1.7 [respectively] of the CC)

- International Treaties: Shall not have direct application in Spain until they became
part of the domestic legal system, with its respective publication in the Official
State Gazette.
- Jurisprudence: It’ll complement the Legal System through the opinion of the
Supreme Court in its interpretation and application of written laws, custom and
general principles of law.
o Both judges and courts, must resolve the issues raised by adjusting to the
established system of sources.

3.- Spanish Civil Code and other Civil Laws: (Arts. 13-16 CC)

- Common law and Special Regional law: Civil Citizenship (Art 14 CC).

- Foral Laws: Such as the ones of Navarre, Balearic Islands, Aragon, etc. - (Art. 149.9.1 SC)
“Foral Laws can be preserved, modified and developed”.

It needs to be pointed out that in Spain there is not only one Civil Law, the existence of these
different system is due to the fact that Spain was historically divided in several independent
territories.

The Civil Code, enacted in 1889, had the purpose of determining the Civil law, but it didn’t
supress the civil laws of the different territories, hereinafter referred to as Foral Laws

- Family and Succession Laws.

4.- Spanish Civil Code of 1978: (Top ranking of the Legal System)

- The Constitutional Court is the guarantor of the good interpretation of it.

5.- Law and Business. General legal principles that inspire the organization of the Spanish
economic activity nowadays:
 - Private Property: Defined as one of the rights of all citizens. (Art. 33 SC) Economic goods can
be attributed to the individuals and no to the State. (Art. 128 SC) The wealth of the country
regardless of its ownership is subordinated to the general interests. (Art. 128.2 SC) By law,
essential resources or servicer, particularly in case of monopolies can be reserved of the public
sector. (Art. 45 SC) To protect natural resources the public authorities shall concern about the
rational use of all natural resources.

- Economic Freedom. Involves 3 main concepts and 3 sub-concepts:

- Free Market: Entails that the means of production can be in private hands and
there’s freedom in the production and exchange of goods and services.
- Free Enterprise: The right to create and conduct business for profit without the
intervention of the State.
- Freedom of Contract: Is the right to choose one’s contracting parties and to trade
with them on the terms and conditions they find appropriate.
- Exchange Principle: Economic order is based in the exchange of goods and
services, so legal rules have to be established to regulate such exchange.
- Moral Sense and Principle of Good Faith: An honest believe, the absence of malice
and the absence of design to defraud or to seek an unconscionable advantage…
- Legal Certainty: For public order, the persons that intervene in the market are
confident as to the certainty of the legal rules applicable to their situation.
o Requirements for legal certainty to exist: Laws should be clear an precise;
should be clear and precise as possible; legitimate expectations have to be
protected; judiciary must be independent; courts should be easily
accessible and decisions justified; judicial review has to be secured.