The Spanish Constitution: A Deep Dive
The Constitution as a Legal Standard
The Constitution of the Second Republic establishes a clear rule of law, producing both positive (creating rights and obligations) and negative (repealing conflicting older rules) effects.
Positive Effects
Every legal rule has two parts: the preamble (or explanatory memorandum) and the articulated text. Only the articulated text (the articles) produces positive and negative effects. While the non-articulated text helps interpret the articles, the Constitution contains very little of this.
Article 9.1 specifies that the Constitution applies to both citizens and public authorities. This principle applies to the entire legal system, though the Constitution provides an exception in Article 53.3.
According to this article, public authorities are bound by Chapter III of Title II, while citizens are bound by articles that create rights or obligations. Citizens cannot claim rights not developed by regulatory laws.
Certain rights arise indirectly from the Constitution. The right to “be informed” implies that implementing laws must respect and uphold constitutional rights.
The Constitution’s binding force raises some issues. For example, some scholars argue that while laws should apply to all citizens or groups, many articles address the Crown (King, Ruler, Crown Prince, etc.), suggesting these are not legal requirements. Furthermore, the Constitution defers certain matters to the legislature (e.g., Article 27.1), sometimes with limited legislative scope (e.g., Article 28.2).
Some constitutional provisions (e.g., Article 128.1) are not legal standards, lacking the essential requirement of regulating a subject and addressing fulfillable directives to natural or legal persons. These provisions have programmatic value, establishing goals but lacking enforceable terms.
Negative Effects
Any new legal rule supersedes incompatible prior standards. However, if a new rule contradicts a higher-ranking older rule, the new rule is invalid due to the principle of hierarchy.
Our system is complex. For a standard to be repealed, the repealing standard must be of equal or higher hierarchy, have the same authority (an organic law cannot repeal an ordinary law), and address the same subject matter (an autonomous law can supersede a state law).
Repeal occurs when the legislature intends to invalidate a prior rule, either expressly (explicitly stating the repeal) or implicitly (requiring a comparison).
The Constitution establishes three repeal requirements. First, it repeals the Political Reform Act due to its temporary nature. Second, it repeals all laws of the Franco regime. Third, it implicitly repeals all provisions contrary to itself. While the third requirement is implicit, it is formally expressed. It fulfills all repeal requirements, being the highest-ranking standard with jurisdiction over all matters.
This necessitates comparing old and new rules. While not formally required for repeal, prior provisions remain applicable until repealed. Although anyone can compare standards, only the Courts of Justice can declare a repeal. The Court acts as an arbitrator, acknowledging the repeal inherent in the new rule, not as a “negative legislator.”
Doctrinal Issues on Implied Repeal under the Constitution
- Minority View 1: Only the Constitutional Court can declare implied repeal, as the Constitution can only be defended by the Court, which has sole control over the constitutionality of subsequent standards.
Objections: Neither the Constitution nor its rules mandate Court control over prior rules. While only the Constitutional Court upholds the Constitution, ordinary courts can and should repeal unconstitutional regulations. - Minority View 2: The Constitution, as the highest-ranking standard, removes older standards via the principle of hierarchy. Only the Constitutional Court can uphold the Constitution.
Objections: Same as above, plus applying the principle of repeal is simpler than applying hierarchy. - Mainstream View: Courts of Justice declare repeals. The Constitutional Court has adopted this view, but also considers that it can, alternatively, set the comparison as the ultimate interpreter of the Constitution.