The Law of Spain is the legislation in force in the
Kingdom of Spain
, image_flag = Bandera de España.svg
, image_coat = Escudo de España (mazonado).svg
, national_motto = ''Plus ultra'' (Latin)(English: "Further Beyond")
, national_anthem = (English: "Royal March")
, i ...
, which is understood to mean Spanish territory, Spanish waters, consulates and embassies, and ships flying the Spanish flag in democratically elected institutions.
Characteristics
Spanish law follows the continental 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
eu, autonomia erkidegoa
ca, comunitat autònoma
gl, comunidade autónoma
oc, comunautat autonòma
an, comunidat autonoma
ast, comunidá autónoma
, alt_name =
, map =
, category = Autonomous administra ...
legislation coexists with the national.
Constitutional supremacy
The supreme Spanish law is the
Spanish Constitution
The Spanish Constitution (Spanish, Asturleonese, and gl, Constitución Española; eu, Espainiako Konstituzioa; ca, Constitució Espanyola; oc, Constitucion espanhòla) is the democratic law that is supreme in the Kingdom of Spain. It was e ...
of 1978, which regulates the functioning of public bodies and the fundamental rights of the Spanish people, as well as the organization and competencies of the different autonomous communities. The Constitution, as well as being directly applicable by the
judiciary
The judiciary (also known as the judicial system, judicature, judicial branch, judiciative branch, and court or judiciary system) is the system of courts that adjudicates legal disputes/disagreements and interprets, defends, and applies the law ...
, 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 a public body is needed to regulate the fulfilment of this rule. In Spain's case, a
Constitutional Court
A constitutional court is a high court that deals primarily with constitutional law. Its main authority is to rule on whether laws that are challenged are in fact unconstitutional, i.e. whether they conflict with constitutionally established ...
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
Ordinary court or Judicial court is a type of court with comprehensive subject-matter jurisdiction compared to 'Specialized court' with limited jurisdiction over specific filed of matters, such as intellectual property court. Due to its compr ...
questions a law, only the right of the 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 functions
The division of powers, a fundamental idea in liberal thinking, is the core of the political system. Although, the Spanish Constitution only establishes the separation of functions. At its heart, national sovereignty permits the election, by
universal suffrage
Universal suffrage (also called universal franchise, general suffrage, and common suffrage of the common man) gives the right to vote to all adult citizens, regardless of wealth, income, gender, social status, race, ethnicity, or political stan ...
(men and woman older than 18), of representatives of the sovereign people in the
Cortes Generales
The Cortes Generales (; en, Spanish Parliament, lit=General Courts) are the bicameral legislative chambers of Spain, consisting of the Congress of Deputies (the lower house), and the Senate (the upper house).
The Congress of Deputies meet ...
. The Cortes Generales exercise
legislative power
A legislature is an assembly with the authority to make laws for a political entity such as a country or city. They are often contrasted with the executive and judicial powers of government.
Laws enacted by legislatures are usually known a ...
through two chambers, the
Congress of Deputies
The Congress of Deputies ( es, link=no, Congreso de los Diputados, italic=unset) is the lower house of the Cortes Generales, Spain's legislative branch. The Congress meets in the Palace of the Parliament () in Madrid.
It has 350 members elect ...
and the
Senate, choose the
Prime Minister
A prime minister, premier or chief of cabinet is the head of the cabinet and the leader of the ministers in the executive branch of government, often in a parliamentary or semi-presidential system. Under those systems, a prime minister i ...
and control the actions of the
executive power
The Executive, also referred as the Executive branch or Executive power, is the term commonly used to describe that part of government which enforces the law, and has overall responsibility for the governance of a state.
In political systems b ...
, which must obey the law.
The judicial powers fall into the hands of the
judges and
courts
A court is any person or institution, often as a government institution, with the authority to adjudicate legal disputes between parties and carry out the administration of justice in civil, criminal, and administrative matters in accorda ...
, 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
Public Administration (a form of governance) or Public Policy and Administration (an academic discipline) is the implementation of public policy, administration of government establishment (public governance), management of non-profit est ...
must fit into the
Magna Carta.
Sources of law
The sources of law in Spain are:
*Law
*Usage
*General principles of law
*Jurisprudence
Jurisprudence
Jurisprudence, or legal theory, is the theoretical study of the propriety of law. Scholars of jurisprudence seek to explain the nature of law in its most general form and they also seek to achieve a deeper understanding of legal reasoning a ...
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 Council State Council may refer to:
Government
* State Council of the Republic of Korea, the national cabinet of South Korea, headed by the President
* State Council of the People's Republic of China, the national cabinet and chief administrative auth ...
, the
Account Court, the
Constitutional Court
A constitutional court is a high court that deals primarily with constitutional law. Its main authority is to rule on whether laws that are challenged are in fact unconstitutional, i.e. whether they conflict with constitutionally established ...
, 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).
Hierarchy of laws
Article 1.2 of the
Spanish Civil Code
The Civil Code of Spain ( es, Código Civil), formally the Royal Decree of 24 July 1889 ( es, Real Decreto de 24 de julio de 1889) is the law that regulates the major aspects of Spanish civil law. It is one of the last civil codes in Continental ...
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 Law (which requires an
absolute majority
A supermajority, supra-majority, qualified majority, or special majority is a requirement for a proposal to gain a specified level of support which is greater than the threshold of more than one-half used for a simple majority. Supermajority r ...
from the
Cortes Generales
The Cortes Generales (; en, Spanish Parliament, lit=General Courts) are the bicameral legislative chambers of Spain, consisting of the Congress of Deputies (the lower house), and the Senate (the upper house).
The Congress of Deputies meet ...
),
ordinary law An 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 o ...
and regulatory laws (amongst which are found the
Royal Decree-Law and the
Royal Legislative Decree).
#Laws stemming from the executive, with its own hierarchy based on the function of the body that made them (
Royal Decree
A decree is a legal proclamation, usually issued by a head of state (such as the president of a republic or a monarch), according to certain procedures (usually established in a constitution). It has the force of law. The particular term used for ...
,
Decree
A decree is a legal proclamation, usually issued by a head of state (such as the president of a republic or a monarch), according to certain procedures (usually established in a constitution). It has the force of law. The particular term used ...
,
Ministerial Order
A ministerial decree or ministerial order is a decree by a ministry. With a ministerial decree the administrative department is delegated the task to impose a formal judgement or mandate. Ministerial decrees are usually imposed under the authority ...
, 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 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. Only European Community law in line with precedential Spanish Constitution 1978, provincial, diplomatic and judicial findings can be considered to have standing. Lack of a prior challenge does not negate future negation based on the national law. Spanish culture restrains many challenges that knowledgeable lawyers are prepared to pursue if required by a case.
Relationship between European Community 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
The Treaty on European Union, commonly known as the Maastricht Treaty, is the foundation treaty of the European Union (EU). Concluded in 1992 between the then-twelve member states of the European Communities, it announced "a new stage in the pr ...
, 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
A member state is a state that is a member of an international organization or of a federation or confederation.
Since the World Trade Organization (WTO) and the International Monetary Fund (IMF) include some members that are not sovereign state ...
to apply them by passing laws whereas regulations are
directly applicable.
Interpretation of laws in Spain
The Spanish Civil Code regulates the interpretation of laws in Spain, and establishes the following:
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