Law of Spain
Encyclopedia
The Law of Spain is the term used to describe the legislation which is in force in the Kingdom of Spain
, which is understood to mean Spanish territory, Spanish waters, consulates and embassies, and ships flying the Spanish flag in international waters. It is also applicable to the Spanish armed forces worldwide. Spanish law stems from the Spanish people through democratically elected institutions. Equally, part of the legislation comes from the supranational institutions of the European Union
, which also enjoy democratic legitimacy.
, enjoys a material supremacy that determines the rest of the laws in Spain.
exists, which follows the Kelsenian (or Austrian) model.
Following this doctrine, the constitutional court has two basic functions:
In a case where an ordinary court questions a law, only the right of declaration is available, and it must go to the Constitutional Court with the question of constitutionality so that it can be declared, thus it is the only body which possesses the power to reject laws.
(men and woman older than 18), of representatives of the sovereign people in the Cortes Generales
. The Cortes Generales exercise legislative power through two chambers, the Congress of Deputies and the Senate
, choose the Prime Minister
and control the actions of the executive power
, which must obey the law.
The judicial powers fall into the hands of the judge
s and courts, an office which the public has access to, and in a jury, which is formed by nationals chosen by lottery in every case. The Constitutional Court controls the laws and the actions of the public administration must fit into the Magna Carta
.
Jurisprudence
is a secondary source.
, the Account Court, the Constitutional Court, the General Council of the Judicial Power of Spain
, etc.), constitutionally recognised rights and the constitutional mechanisms to do with the interference by the public bodies with individual freedoms, rights and guarantees.
Also included within the realm of public law are criminal law, process law, financial and tax law and certain parts of labour law (infractions and sanctions of the public order, for example).
With effect to this, the Spanish Constitution of 1978 is the supreme law, which regulates all the complex relationships between the different laws and their place in the hierarchy.
The hierarchy of Spanish laws is thus:
Besides this, the Spanish Constitution establishes the competency of the Autonomous Communities with regard to the regulation of certain areas, and their ability to create legal laws via their own Parliaments. In a procedure between the autonomous parliament and the national parliament the Statute of Autonomy
exists, which is the fundamental law for the Autonomous Communities. After this, the hierarchy of laws will be the law dictated by the autonomous parliament with regard to its regulatory competencies, dictated by the autonomous executive.
Local authorities do not have legislative abilities even if they possess regulatory authority.
The relationship between autonomous and national laws depends the competencies established in the Constitution and in the respective Statute of Autonomy. The Constitutional Court is the body with the power to decide if a law is constitutional or not as well as the power to resolve conflicts regarding competencies between the State, the Autonomous Community and the Local Authorities.
On its part, EC law is divided into original and derived law, the original having its origins in the Treaties ratified by Spain, and the derived emanating from the EC institutions.
All laws stemming from EC institutions are directly applicable in Spain in virtue of the Treaty of the European Union, ratified by Spain and thus part of the internal Spanish law. Given that the treaties have a higher hierarchical position compared to laws, in the case of conflict the Treaties will be given primacy.
Within EC law it is necessary to distinguish between directives and regulations. Directives need the Member State
to apply them by passing laws whereas regulations are directly applicable
.
Spain
Spain , officially the Kingdom of Spain languages]] under the European Charter for Regional or Minority Languages. In each of these, Spain's official name is as follows:;;;;;;), is a country and member state of the European Union located in southwestern Europe on the Iberian Peninsula...
, which is understood to mean Spanish territory, Spanish waters, consulates and embassies, and ships flying the Spanish flag in international waters. It is also applicable to the Spanish armed forces worldwide. Spanish law stems from the Spanish people through democratically elected institutions. Equally, part of the legislation comes from the supranational institutions of the European Union
European Union
The European Union is an economic and political union of 27 independent member states which are located primarily in Europe. The EU traces its origins from the European Coal and Steel Community and the European Economic Community , formed by six countries in 1958...
, which also enjoy democratic legitimacy.
Characteristics
Spanish law follows the ugly system, which means it is supported principally by the law in the broad sense (laws and regulations) and to a lesser extent by judicial decisions and customs. Likewise, it is a complex law, in which various autonomous community legislation coexists with the national.Constitutional supremacy
The supreme Spanish law is the Spanish Constitution of 1978, which regulates the functioning of public bodies and the fundamental rights of the Spanish people, as well as the organisation and competencies of the different autonomous communities. The Constitution, as well as being directly applicable by the judiciaryJudiciary
The judiciary is the system of courts that interprets and applies the law in the name of the state. The judiciary also provides a mechanism for the resolution of disputes...
, enjoys a material supremacy that determines the rest of the laws in Spain.
Constitutional control
All laws in Spain must be declared compatible with the Constitution (all laws that contravene the Constitution are invalid). However, it is clear that it a public body is needed to regulate the fulfilment of this rule. In Spain's case, a Constitutional CourtConstitutional Court of Spain
thumb|300px|The [[Domenico Scarlatti]] Building located in [[Madrid]], seat of the Constitutional Court of Justice of Spain.The Constitutional Court of Spain is the highest judicial body with the power to determine the constitutionality of acts and statutes of the Spanish Government. It is...
exists, which follows the Kelsenian (or Austrian) model.
Following this doctrine, the constitutional court has two basic functions:
- Ensuring all law is compatible with the Constitution.
- Declaring the nullity of laws which contravene the Constitution.
In a case where an ordinary court questions a law, only the right of declaration is available, and it must go to the Constitutional Court with the question of constitutionality so that it can be declared, thus it is the only body which possesses the power to reject laws.
Separation of powers
The division of powers, a fundamental idea in liberal thinking, is the core of the political system. At its heart, national sovereignty permits the election, by universal suffrageUniversal suffrage
Universal suffrage consists of the extension of the right to vote to adult citizens as a whole, though it may also mean extending said right to minors and non-citizens...
(men and woman older than 18), of representatives of the sovereign people in the Cortes Generales
Cortes Generales
The Cortes Generales is the legislature of Spain. It is a bicameral parliament, composed of the Congress of Deputies and the Senate . The Cortes has power to enact any law and to amend the constitution...
. The Cortes Generales exercise legislative power through two chambers, the Congress of Deputies and the Senate
Spanish Senate
The Senate of Spain is the upper house of Spain's parliament, the . It is made up of 264 members: 208 elected by popular vote, and 56 appointed by the regional legislatures. All senators serve four-year terms, though regional legislatures may recall their appointees at any time.The last election...
, choose the Prime Minister
Prime Minister of Spain
The President of the Government of Spain , sometimes known in English as the Prime Minister of Spain, is the head of Government of Spain. The current office is established under the Constitution of 1978...
and control the actions of the executive power
Executive Power
Executive Power is Vince Flynn's fifth novel, and the fourth to feature Mitch Rapp, an American agent that works for the CIA as an operative for a covert counter terrorism unit called the "Orion Team."-Plot summary:...
, which must obey the law.
The judicial powers fall into the hands of the judge
Judge
A judge is a person who presides over court proceedings, either alone or as part of a panel of judges. The powers, functions, method of appointment, discipline, and training of judges vary widely across different jurisdictions. The judge is supposed to conduct the trial impartially and in an open...
s and courts, an office which the public has access to, and in a jury, which is formed by nationals chosen by lottery in every case. The Constitutional Court controls the laws and the actions of the public administration must fit into the Magna Carta
Magna Carta
Magna Carta is an English charter, originally issued in the year 1215 and reissued later in the 13th century in modified versions, which included the most direct challenges to the monarch's authority to date. The charter first passed into law in 1225...
.
Sources of law
The sources of law in Spain are:- Law.
- CustomCustom (law)Custom in law is the established pattern of behavior that can be objectively verified within a particular social setting. A claim can be carried out in defense of "what has always been done and accepted by law." Customary law exists where:...
. - General principles of law.
Jurisprudence
Jurisprudence
Jurisprudence is the theory and philosophy of law. Scholars of jurisprudence, or legal theorists , hope to obtain a deeper understanding of the nature of law, of legal reasoning, legal systems and of legal institutions...
is a secondary source.
Organization of Spanish public law
- Constitutional law. This is the collection of laws and judicial institutions related to the organization of the constitutional bodies and the exercise of the citizen's basic rights and freedoms.
- Administrative law. This regulates the organization and functioning of the powers and bodies of the state and its relations with individuals.
- Criminal law. This regulates the so-called punitive (disciplinary) actions.
- Process law. This is integrated by the collection of laws that regulate judging procedures.
- Financial and tax law. This is a collection of laws that organize or study the resources that constitute the finances of the State and the other public bodies. They regulate the procedures to obtain deposits and to regulate expenses and payments.
- International public law. This is integrated by the laws that regulate the judicial relations between each state and the other members of the international community.
Organization of Spanish private law
- Civil law. This is integrated by the collection of laws that regulate the person, the family, personal assets, contractual relations and the extra contractual civil responsibility. Within this we find the common and local law.
- Commercial law. This is the collection of laws that regulate law relating to business, within the world of business.
- Labour or social law. This regulates the relationships between employees and employers. Complains about social security fall under public law.
- International private law. This regulates the relationships between physical and judicial persons of different nationalities.
Public and private law
In Spain, within public law is included the regulation of the highest state institutions, constitutional law, which regulates the organisation, competencies and functioning of the constitutional bodies (the State CouncilSpanish Council of State
The Spanish Council of State is the supreme consultative council of the Spanish Government. The current Council of State was established in 1980 according to the article 107 of the Constitution of 1978. The institution of the Council of State, understood as supreme consultative council of the...
, the Account Court, the Constitutional Court, the General Council of the Judicial Power of Spain
General Council of the Judicial Power of Spain
The General Council of the Judiciary is the constitutional body that governs all the Judiciary of Spain, such as courts, and judges, as it is established by the Spanish Constitution of 1978, article 122 and developed by the Organic Law 6/1985 of the Judiciary Power...
, etc.), constitutionally recognised rights and the constitutional mechanisms to do with the interference by the public bodies with individual freedoms, rights and guarantees.
Also included within the realm of public law are criminal law, process law, financial and tax law and certain parts of labour law (infractions and sanctions of the public order, for example).
Hierarchy of laws
Article 1.2 of the Spanish Civil Code establishes that inferior and superior laws to be distinguished. However, the relationship between laws is not limited to a question of hierarchy, but also relationships of competency exist between some laws and others.With effect to this, the Spanish Constitution of 1978 is the supreme law, which regulates all the complex relationships between the different laws and their place in the hierarchy.
The hierarchy of Spanish laws is thus:
- The Constitution.
- International treaties.
- The law in its strict sense: Organic LawOrganic Law (Spain)An Organic Law in Spanish law under the present Spanish Constitution of 1978 must be passed by an absolute majority of the Congress of Deputies...
(which requires an absolute majority from the Cortes GeneralesCortes GeneralesThe Cortes Generales is the legislature of Spain. It is a bicameral parliament, composed of the Congress of Deputies and the Senate . The Cortes has power to enact any law and to amend the constitution...
), ordinary lawOrdinary lawAn ordinary law is a normal law, generally distinguished from a constitutional law, organic law, or other similar law. Typically, ordinary laws are subordinate to constitutional and organic laws, and are more easily changed than constitutional or organic laws, though that should not be assumed to...
and regulatory laws (amongst which are found the Royal Decree of Law and the Legislative Royal Decree). - Laws stemming from the executive, with its own hierarchy based on the function of the body that made them (Royal Decree, DecreeDecreeA decree is a rule of law issued by a head of state , according to certain procedures . It has the force of law...
, Ministerial OrderMinisterial OrderIn Belgium, a Ministerial Order is a decision of a minister of the Federal Government. The Belgian Constitution stipulates that the King, in practice the Federal Government as a whole, is responsible for the execution of laws adopted by the Federal Parliament. This is done by Royal Order. For more...
, etc.).
Besides this, the Spanish Constitution establishes the competency of the Autonomous Communities with regard to the regulation of certain areas, and their ability to create legal laws via their own Parliaments. In a procedure between the autonomous parliament and the national parliament the Statute of Autonomy
Statute of Autonomy
Nominally, a Statute of Autonomy is a law hierarchically located under the constitution of a country, and over any other form of legislation...
exists, which is the fundamental law for the Autonomous Communities. After this, the hierarchy of laws will be the law dictated by the autonomous parliament with regard to its regulatory competencies, dictated by the autonomous executive.
Local authorities do not have legislative abilities even if they possess regulatory authority.
The relationship between autonomous and national laws depends the competencies established in the Constitution and in the respective Statute of Autonomy. The Constitutional Court is the body with the power to decide if a law is constitutional or not as well as the power to resolve conflicts regarding competencies between the State, the Autonomous Community and the Local Authorities.
Relationship between EC and Spanish law
As well as these three levels, reference must be made to EC law, which is an autonomous legal system applicable in Spain and whose laws are sovereign over national laws with virtue to the hierarchy of sources, which places international treaties at a higher level than the law. Regarding the Constitution there is a great debate between Constitutionalists and Communitarians as to which is supreme. For the former the Constitution is supreme, whereas for the latter the Treaties are supreme. In practice, the only time in which the Constitution and Treaties conflicted, the Constitution was modified to be in line with the Treaties.On its part, EC law is divided into original and derived law, the original having its origins in the Treaties ratified by Spain, and the derived emanating from the EC institutions.
All laws stemming from EC institutions are directly applicable in Spain in virtue of the Treaty of the European Union, ratified by Spain and thus part of the internal Spanish law. Given that the treaties have a higher hierarchical position compared to laws, in the case of conflict the Treaties will be given primacy.
Within EC law it is necessary to distinguish between directives and regulations. Directives need the Member State
Member state
A member state is a state that is a member of an international organisation.The World Trade Organization has members that are sovereign states and members that are not, thus WTO members are not called member states.- Worldwide :...
to apply them by passing laws whereas regulations are directly applicable
Direct applicability
A concept of European Union constitutional law that relates specifically to regulations, direct applicability is set out in Article 288 of the Treaty on the Functioning of the European Union .Although often confused with the doctrine of direct effect, direct...
.