Spanish Constitutionalism: Executive, Legislative, and Judicial Authorities

The Executive, Legislative, and Judicial Authorities of Spanish Constitutionalism

A) The Concept of Constitutionalism

Constitutionalism is a political movement that sought to establish the fundamental principles of political organization. The constitution emerged as a means to limit ruling power, regulate its activity, and guarantee the freedom of citizens. Its origin lies in the rationalist theories of natural justice from the late 18th century.

Principles: The existence of natural law, according to which man has inalienable rights, and the division of legislative, executive, and judicial powers.

Prevailing Ideas: All men must be equal before the law. These new ideas penetrated the Parliament of Cádiz (19th century).

B) Statutes and Constitutions within a State Governed by the Rule of Law

1. Statute of Bayonne (1808)
2. The Constitution of Cádiz (1812)

Principles: Pillars of the state were the monarchy, parliament, and courts. Sovereignty resided in the nation, with separation of powers, a confessional state, creation of legal codes, and unitary jurisdiction.

Rights: Legal equality, the right to education, freedom of expression, and private property.

In 1868, the Glorious Revolution began in Cádiz with a military coup by General Prim and Serrano, ending the reign of Isabel II.

Principles: National sovereignty, justice, liberty, and security of the nation, separation of powers, and rights (privacy, freedom of residence, movement, religion, expression, and free association).

Constitutional Organs: Parliament (two chambers) and the monarchy (the monarch is sacred and inviolable, not subject to responsibilities, and had executive powers).

Codification of Law

Codification implies legal unification and systematization. This process aimed to introduce a new legal system, based on rational principles, that was distinct from the ancient regime.

1. Codification of Modern Criminal Law (1822)

Concept: The modern notion of a criminal act classifies it as typified, unlawful, culpable, and punishable. The theory of imputation relates an event and a subject.

Principles: Legality (stopping arbitrary judicial decisions), individual attribution of punishments (not affecting groups not involved), reduction of punishments to four (death penalty, prison, financial penalties, and other restricting rights), and secularization of criminal law (eliminating blasphemy, adultery, and cohabitation).

Conclusion: There was a reform of criminal law more than a complete break with criminal law tradition.

2. The Codification of Civil Law

The main problem was and is in relation to private law. The autonomous communities have legislative competence in private law matters. The process of unification was:

• From the Reconquest to the decrees of Felipe V, kingdoms enjoyed legal diversity and legislative power to develop their legal institutions.
• From the decrees to the current constitution.