Decree Law and the Social Democratic State in Spain

Posted on Feb 7, 2025 in Law & Jurisprudence

Decree Law in the Spanish Constitution

Article 86 EC

  1. In case of extraordinary and urgent need, the Government may issue temporary legislative provisions. These will take the form of decrees and ordinances that may not affect the basic institutions of the State; the rights, duties, and freedoms of the citizens in the title; the system of autonomous communities; or the general electoral law.
  2. The decrees must be immediately submitted for debate and voting by the entire Congress. If Congress is not already in session, it must be convened for this purpose within thirty days following enactment. Congress must expressly declare itself within this period for ratification or repeal, for which the Regulation will establish a special summary procedure.
  3. During the period in the previous section, the Cortes may process them as bills through the emergency procedure.

Enabling Assumptions and Limitations

  1. Necessity
  2. Urgency
  3. Extraordinariness
  4. Material Scope: Any provision regulated by ordinary law may be subject to a decree law.

Form: Adoption and Entry into Force

  1. The decree laws must be approved within a period of thirty days.
  2. The decree-law comes into force on the day following its publication.

Intervention of Parliament

  1. Validation:
    • The result of the validation is not a formal law of Parliament. Instead, the decree law no longer exists as a provisional disposition dictated by the government, becoming the expression of a desire to act jointly with the Government and Congress.
    • Validation is not its repeal.
    • It is an act prior to its subsequent processing as a bill.
  2. Conversion Law: The decree-law may apply as a bill by urgent procedure, if a parliamentary group requests it and the House approves it.

The Decree-Law in the Legal System

  1. Effects of Decree – provisional.
  2. Effects of the validation – Passive Resistance:
    • The decree law cannot be amended or repealed except by law; that is, by another standard equipped with the same specific strength.
  3. Validation and law.

Social Democratic State and Rule of Law

Introduction

  1. Historical Origin: Basic Law of Bonn (1949).
  2. Superseding the Liberal State of Law: The proletariat views the separation of state and society as an instrument to ensure the interests of the bourgeoisie. Society’s participation in the control of decisions.
  3. Social State and Democratic State of Law:
    • Welfare State: The state intervenes in social problems and seeks equality of citizens.
    • Democratic State: The state sees the vote as opposed to the Marxist welfare state.

Features

  1. Weakening of the separation of powers:
    • Parliament elects the members of the executive power.
  2. Expansion of the sphere of public intervention.
  3. Transformative Vocation:
    • Desire to transform society by making it fairer.

Social and Democratic State of Law in the Spanish Constitution of 1978

  1. It is indicated in Article 1.1.
  2. Preliminary Title of the legal value of the Spanish Constitution:
    • 2A. Constitutional Super-legality:
      • The Constitution is the supreme rule that governs the rest of the order.
    • 2B. Direct Effectiveness:
      • Rules for direct application.
      • No law requires development to be effective.
    • 2C. Hermeneutic Value:
      • Public authorities may interpret legal rules from the Constitution.
  3. The Social State in the Spanish Constitution:
    • 3a. Material Equality (Article 9.2):
      • Discriminatory measures.
    • 3b. Non-retroactivity of social conquests:
      • They can affect situations prior to the promulgation of the rules.
    • 3c. Social Rights.
    • 3d. Intervention in the economic process.
  4. The State of Democracy in the Spanish Constitution:
    • 4a. Advanced Democracy.
    • 4b. People’s Sovereignty.
    • 4c. Political Pluralism.
    • 4d. Citizen Participation.