Understanding Different Types of Laws and Legal Principles
Common Law
Common law is the standard ordinary legal status, usually the second step in the legal hierarchy of a state’s laws, following the Constitution and in parallel with organic laws or equivalent (which often have unique requirements for approval and deal with specific matters). It is at the same hierarchical level but with different powers. However, Spain’s Constitutional Court held in its Judgement of February 13, 1981, that the relationship between regular and organic law is not one of hierarchy, but of competence. Thus, both are at the same level in the hierarchy of norms.
Subject to approval by Congress or Parliament, usually by a simple majority. In democratic systems, members of Parliament or Congress are elected by universal suffrage. The adoption of laws can be made by a vote of the full chamber, or by one of the legislative committees.
Ordinary laws begin their investigation, either at the initiative of the Chamber or at the initiative of the executive. In some systems, it is also supported by a popular initiative.
Ordinary laws are also passed by the legislatures of federated states, territories, and autonomous regions within a federal state, or regional autonomy, which have attributed this ability.
Organic Law
Organic laws are for the development of fundamental rights and public freedoms, those approving the Statutes of Autonomy and the general electoral system, and others under the Constitution. Their approval, amendment, or repeal requires an absolute majority of Congress in a final vote on the whole project. An organic law is presented as a project (by the Government) or a bill (by the Parliament) and must meet the same parliamentary procedure as an ordinary statute. As per the Constitution, the main difference in the process is that Congress must make a final vote to end all proceedings, where the law must obtain an absolute majority for approval. In the case of ordinary laws, the final vote is not realized. Article 87 of the Constitution states who has legislative initiative to present a draft law or proposal (whether organic or ordinary) to Parliament. Point 87.3 states: “An organic law shall regulate the manner and the requirements of the popular initiative for submission of bills. In any case, it requires at least 500,000 accredited signatures. There shall be no such initiative in matters pertaining to organic law or international tax, or in relation to the prerogative of mercy.” Therefore, the Government, Congress, the Senate, and the Legislative Assemblies of the Autonomous Communities can initiate the legislative process leading to the adoption of an organic law (Articles 87.1 and 87.2). However, the popular initiative has several restrictions to start procedures, among which is the failure to initiate steps to make laws or legislate organic materials that can only be regulated by organic law.
Decree-Law
Decree-Law means the rule with the force of law issued by the executive, without necessarily requiring the intervention or authorization of Congress or Parliament. Validity: In the first sense of the term, this rule has validity pending the validation period, ranging from ten days in some jurisdictions up to forty-five days in others. Once submitted to the legislature, it can ratify, repeal, or modify it. In Spain, it is regulated by Article 86 of the Constitution. These limits ensure that the decree-law will not be misused by the government. It shall be discussed by the Congress of Deputies (Spanish Parliament) within 30 days to validate or undo it (although there will be a very limited number of days on which the decree-law is still in force without parliamentary approval). Congress can only affirm or deny it, but not modify or ignore it. In practice, the decree-law has been established not as an emergency action, but as a means by which the executive order includes laws to save the time it takes to pass a law. It is assumed that if the courts have elected to executive decree-laws, these will be approved. In Spain, the decree-law has three limitations:
- Circumstantial: Regarding the fact that causes the birth of the decree-law (the government decides when an act is of “urgent need”).
- Material: Regarding the content of that rule.
- Temporary: Leading to the decree-law or into law.
The decree-law can take the “post” or regulate matters that would take care of the ordinary law, but never in those matters reserved to the organic law (fundamental rights, statutes of autonomy, the electoral system…). Control of the Legislative Decree may concern its source of law, its content as to its constitutionality, or its method of production.
Characteristic features of Decree Law:
- Extraordinary and urgent necessity as qualifying.
- Its tentativeness, the need for recognition by Congress within 30 days, and dealt with as urgently as possible laws.
- Its regulation cannot affect:
- Ordering of basic state institutions.
- Rights, duties, and freedoms of citizens contained in Title I of the Constitution.
- Autonomous Communities (CCAA) regime.
- General electoral law.
Delegated Legislation
Legislative Decree or Decree with Force of Law (DFL) is a legal rule with the force of law emanating from the executive power under delegation made by the legislature. The delegation is set out in Article 82 of the Spanish Constitution and Article 32, issue 3, of the Constitution of Chile. The Legislative Decree technique has a role in several areas:
- For the preparation of texts in sections, having previously passed the Congress or Parliament, a Basic Law or the Law on Delegation that serves as a reference and limit.
- To prepare consolidated texts of various laws, favoring the grouping into a single legal body scattered in different legal standards. These rules are dictated independently and do not require approval by Congress or Parliament. Issued by an ordinary law.
In countries where politics is a parliamentary monarchy, there may be a similar rule, called the Royal Decree, as the regulations emanating from senior executive power are called royal decrees.
Laws of Autonomous Communities, Regulations, and Customs
Jurisprudence
The expression “jurisprudence” refers to the repeated interpretations made by courts in their judgments of legal norms and may be one of the sources of law, depending on the country. It can also be called the set of firm and uniform rulings issued by the courts of the State. This means that to know the full content of the existing rules, one must consider how they have been applied at all times. In other words, jurisprudence is the set of statements that have met the same or similar cases in the same way or in the same direction.
General Principles of Law
These are the more general policy statements, subject to not being integrated into the legal system under formal procedures. They are understood to be part of it because they are based on particular policy or other statements contained in the abstract content of a group of them. These principles are used by judges, legislators, the makers of legal doctrine, and in general, to integrate legal loopholes or to interpret legal rules whose application is questionable.
Principles
Constitutionality, legality, hierarchy of rules, advertising standards, retroactivity, legal security, and interdiction of arbitrariness.