Principles of State Organization: Legality and Constitutionality
Topic 1: Principles of State Organization and Functioning
The Principle of Legality and Constitutionality
Within any model of state, and as part of the positive legal system, there is a set of principles that organize and drive the proper functioning of the political, legal, institutional, and constitutional political community.
Many of these principles are collected, in our case, in Article 9.3 of the Spanish Constitution (EC). These include the classic principles of publicity of rules, non-retroactivity of unfavorable or restrictive individual rights, legal certainty, accountability, and prohibition of arbitrariness of public powers, among others.
The Principle of Legality
The principle of legality, which definitively inspired the main tenets of the rule of law, was its cornerstone. It meant that any public manifestation of the state should be subject to the law, its regulations, and procedures. It provided legal certainty to citizens and prevented any form of corruption or irregular exercise of power.
The initial problem was the assumption that the law, as a product of reason, was perfect, and therefore any state action submitted to it would also be perfect.
The Principle of Constitutionality
The model of the constitutional and democratic state of law, an evolution of the liberal model of law, soon needed another principle to complement the rule of law. This new principle would serve as a final guarantee of the democratic legitimacy of the law. Thus arose the principle of constitutionality: the Constitution would be the most important rule, originating from popular sovereignty. It would be directly binding, and any rule that opposed it would be declared unconstitutional and removed from the legal system.
Hierarchy and Competition
The first of these principles is that legal rules are ordered hierarchically, so that lower-ranking rules cannot contravene higher-ranking ones. Thus, Laws, Legislative Decrees, and Decree-Laws take precedence over regulations.
Regulations cannot contradict rules with the force and rank of law. The Constitution guarantees the supremacy of the highest expression of regulation, which is the legal standard, reflecting the political preeminence of Parliament over the Government. The Government holds regulatory power “under the Constitution and laws.”
In addition, the 1978 Constitution provides for different types of laws: organic laws, ordinary laws, harmonization laws, laws of commission, and decree-laws. It also provides for the existence of rules with the force of law issued by regional parliaments.
However, the reduction to unity in national law, which requires advocates to form a system, cannot be explained in all these cases by hierarchy alone, but also by competence.
Thus, the principle of hierarchy and the principle of competence order the system of sources that the Constitution defines and chairs.
The Constitution, being the primary law, has binding force for all public authorities and also possesses supra-legal material. This means that all legal norms must conform to and accommodate it.
The Constitutional Court’s role is precisely to declare which laws are inconsistent with the Constitution, leading to the repeal of that section of the law.