Spanish Law: Types, Hierarchy, and International Treaties
1. The Concept of Law and its Position in the Legal System
Parliamentary bodies operate under specific rules that enable control over minorities and manage regulatory activity. Different types of law serve a unifying purpose: they facilitate the expression of social pluralism through their inherent processes.
The political meaning of law derives from its legal status, which indicates its position within the legal order. This status can be explained through the concepts of ‘status of law’ and ‘force of law’.
The ‘status of law’ is a preliminary consideration of its strength. ‘Force of law’ is attributed only to norms whose legal status is determined by the Constitution. The range of law implies a specific hierarchical position. Legal norms rank below the Constitution but above regulations, with internal hierarchical differences.
The legal status assigns a specific force to the rules, reflected in the relationship between legal sources. Law can repeal lower-ranking norms but cannot be superseded by them. It thus prevails over other legal sources, except the Constitution.
The legal range is the basis for assigning a specific value, determined by the position of the regulatory instrument within the constitutional system. This value expresses the essence of the legal regime and its treatment within the legal order.
2. Types of Laws: Organic and Ordinary
Within the legal framework, we can distinguish various types of laws.
In the general power of the state, ordinary law is the generic and residual type. Specific laws that don’t affect their legal status, such as framework laws, fall under this category.
In contrast, some laws have specific names and unique procedural characteristics. Organic Law, for example, covers a defined material area and requires an absolute majority vote in Congress for approval.
Article 81 of the Spanish Constitution defines Organic Law, specifying its content and approval procedure. This distinguishes it from the general concept of law, making it a material rather than a formal concept.
The scope of Organic Law is outlined in Article 81.1 of the Constitution, including specific provisions and a general clause referring to other constitutional reserves.
The relationship between ordinary and constitutional law has been a subject of debate. Organic law is considered higher than ordinary law, closer to the Constitution, and subject to stricter approval requirements.
Legal actors should prioritize Organic Law within its competence. If its applicability is questioned, the solution depends on whether the conflicting ordinary law precedes or follows it. If subsequent, the Organic Law applies. If prior, a constitutional question must be raised with the Constitutional Court.
3. Reservation of Law
The relationship between law and regulation is traditionally based on the principle of legality of administration, encompassing the concepts of reservation of law and primacy of law.
Reservation of law mandates that certain matters be regulated by law or a legal instrument with the force of law. This principle is rooted in the rule of law, ensuring that fundamental political decisions are subject to the will of those affected.
The modern formulation of this concept is attributed to Otto Mayer, who aimed to protect rights and freedoms.
4. International Treaties as Sources of Law
According to Article 96.1 of the Spanish Constitution, validly concluded international treaties, once officially published in Spain, become part of domestic law. Treaties are thus a source of law, automatically incorporated upon publication.
Treaties introduce rules reflecting the will of international actors, negotiated and agreed upon with other international subjects. This unique characteristic must be considered when analyzing treaties as a source of law.
Internal procedures for establishing state consent are irrelevant in determining a treaty’s status as a source of law. These procedures vary depending on the nature of the treaty.
The rigidity of treaties and their unifying nature as sources of law remain consistent despite variations in internal government formation procedures. However, treaties approved by Parliament hold a different position within the Spanish legal system compared to those simply reported.
Since treaties are not solely domestic sources but also originate from another system, hierarchical relationships between treaty aspects and domestic rules are irrelevant, regardless of the latter’s position in the Spanish legal system. All treaties must be honored to avoid international liability.
This explains Article 95 of the Constitution, which provides for preventive control of the constitutionality of treaties.