The Rule of Law: Concept, Expression, and Content

Posted on Jan 3, 2025 in Geology

How is the Rule of Law Manifested?

The rule of law is a term, an order in its second sense, that compels and orders the relations of a social group. The legal standard is the expression of the mandate of the law. It is expressed by means of regulatory propositions. It is necessary to distinguish between the standard and its normative proposition.

Types of Norms

  • Prescriptive Norms: They order something to be done.
  • Prohibitive Norms: They prohibit something from being done.

As a first exception, there are organizational norms, which do not mandate or prohibit anything, but only specify necessary data (Article 1.1 of the Constitution: Spain is a state governed by the rule of law).

Structure of the Standard

Regarding its structure, the Austrian jurist Hans Kelsen proposed:

If S, then C should be, where S is a situation and C is its consequence. However, since it is always possible that human will prevents the production of consequence C, the legal standard itself must provide for a penalty when the first is breached. Therefore:

If S, then C should be. If C is not, then S should be, where the latter is the penalty (if a married person marries again, the second marriage is annulled).

Hierarchy of Norms

Not all norms have the same rank. The immediate consequence is the subordination of inferior norms to superior ones (Article 1.2 of the Civil Code).

Hierarchical Scale

  1. The Constitution: It is the highest norm. It is not contemplated in Article 1.2 of the Civil Code because it dates from 1974. All norms are subject to it. Its interpretation is the responsibility of the Constitutional Court.
  2. Law: Its elaboration corresponds to the legislative chambers. There are organic and ordinary laws (Article 81 of the Constitution). The former require an absolute majority, and the latter a simple majority. They outline the lines on which the regulation will be based.
  3. Decrees: They develop laws, and their elaboration corresponds to the Council of Ministers. (A decree-law has the rank of law in cases of urgent character, as per Article 86 of the Constitution, and must be subsequently validated by the chambers).
  4. Orders: They emanate from the ministries.

There are also norms from autonomous communities, the European Union, etc. These norms generate different levels, and their prevalence is determined by the Statutes of Autonomy, etc.

Development of the Rule of Law

The rule of law develops over time.

Birth

Custom is generated by society, but its birth cannot be established. The birth of legal norms is known depending on the date of their promulgation. (Article 20.1 of the Civil Code states that laws come into force 20 days after their complete publication in the Official State Gazette). This period is given so that everyone is informed of the publication. It is said that a norm must be written because if it is not written, it does not exist.

Publication Process

  • Law:
    1. Draft bill prepared by the ministry.
    2. Commission of undersecretaries.
    3. Council of Ministers.
    4. Congress of Deputies as a bill. First in the commission and then in the plenary. The initiative can also arise from a parliamentary group as a proposed law and follows the same steps as the bill.
  • Decrees:
    1. Ministry.
    2. Council of Ministers.
  • Orders: Minister.

Life of the Rule of Law

After its birth, its validity begins, and the courts apply it. There is a presumption of knowledge principle (Article 6.1 of the Civil Code states that ignorance of the law does not excuse compliance). There is also a principle of non-retroactivity (Article 23 of the Civil Code states that laws will not have retroactive effect if they do not provide otherwise), except when a crime has ceased to be so with the new law. They are territorial, that is, they are only in force in a given territory, although there are personal norms (a Spaniard can make a will abroad).

Legal Death

A norm becomes anachronistic when social circumstances change (Article 1.800 of the Civil Code considers chariot races prohibited). Norms remain in force until they are repealed, taking into account their hierarchy, except when a period of validity is indicated (e.g., budget law). Repeal is a legislative act. There is tacit repeal (the 1978 Constitution repealed all norms that did not conform to it).

Language of the Legal Standard

The language must be clear and understandable by any citizen of average culture, who often fails to comply with it due to simple ignorance. Careful drafting and avoidance of ambiguities are necessary. Technical terms should only be used when necessary. The Style Commission of the old Parliament worked on the purification of language (before Franco and in democracy). The imperative character has been lost in disuse. The Roman legal order commanded, but today these expressions are abandoned without losing an iota of the precept. The imperative character is clarified by the explanatory memorandum, paragraphs that precede the operative text. This mission also serves to illustrate to citizens the grounds for the mandate.

Classes of Legal Norms and Differentiating Criteria

By Purpose

  • Behavioral Norms: They regulate the behavior of individuals or group activities.
  • Organizational Norms: They have an instrumental character, serving the former to ensure legally ordered coexistence.

By Degree of Imperativeness

  • Mandatory Norms: Those that oblige, in which the obligated must act as prescribed without taking into account their will (Article 1875 of the Civil Code on mortgages).
  • Dispositive Norms: They have a supplementary character with respect to the will of the subjects, which is of preferential application (Article 1316 of the Civil Code on community property).

By Degree of Linkage of the Obligated to the Will

  • Prescriptive Norms: They impose a certain behavior, with the will constrained.
  • Prohibitive Norms: They prohibit a certain behavior, without other options.
  • Permissive Norms: They permit a certain behavior in disuse, and what is not prohibited is lawful.

The Legal System: Concept and Effectiveness

Legal norms operate within a set, the legal system. There are three meanings:

  • Territorial: Set of norms in force in a territory.
  • Historical: Set of norms in force in a certain past order (Roman).
  • Sectorial: Set of norms in force referring to certain relations (labor).

The legal system is provided with entities that refer to a normative plurality. The legal system is a restructured and internally ordered system, a system. It possesses general principles appropriate to all norms, which are not harmoniously juxtaposed. External actions on the system are not made from the system, as scientists do with deduction. Therefore, prudence is required on the part of the legislator.

Coherence of the Legal System

Coherence of the legal system means the non-contradiction of norms. However, the multitude of norms can lead to contradictions. These are resolved according to the following principles:

  • Principle of Temporality: The later norm prevails over the older one.
  • Principle of Hierarchy: The norm of superior rank prevails over the inferior one.
  • Principle of Specialty: The special norm prevails over the general one.

Judges will be responsible for applying one principle or another.

Plenitude of the Legal System

With the Napoleonic Code in 1804, the dogma of the plenitude of the legal system was born, that is, any legal question that may arise has its answer articulated in it. This is far from reality. The law presents gaps. The solution is in the legal system itself (Article 1.7 of the Civil Code states that judges and courts have the inescapable duty to resolve in any case the matters they hear, adhering to the established system of sources), which are, according to (Article 1.1 of the Civil Code), law, custom, and general principles of law.