Understanding Legal Sources and Constitutional Principles in Spain
Formal Aspects of the Spanish Legal System
Constitutional Principles as Supreme Law
As a rule, constitutional principles are supreme. Under the Civil Code, the sources of law are:
- The Law: Originates from legislative decisions (Positive Law).
- Custom: Established through repeated behaviors (Customary Law).
- Judicial Precedent: Derived from court judgments (Jurisprudential Law).
- General Principles of Law (Article 1.4 of the Civil Code), such as good faith in fulfilling agreements and obligations (“pacta sunt servanda,” meaning valid agreements must be respected) and equity in dealings.
These sources are interconnected to ensure:
- Unity: The unity of all sources reflects the concept of law itself. A rule is created based on a superior rule, culminating in the Constitution as the supreme law.
- Hierarchy: Establishes the order of prevalence among different types of rules.
- Functional Differentiation: Based on the principle of separation of powers (characteristic of a liberal state), it assigns specific normative sources to each governmental function: legislative (providing social behavior), executive (guiding), and judicial (adjusting).
Principles Governing the Complex System of Legal Sources
To address the complex system of legal sources in Spain (state, regional, or community), these principles are established:
- Principle of Hierarchy: Lower-ranking laws cannot contradict higher-ranking ones.
- Principle of Competence: Although not explicitly stated in the Constitution, this principle is derived from provisions like Article 81 (organic laws). Certain matters must be regulated by a specific type of rule, and it is unconstitutional to regulate them differently. This principle is independent of hierarchy.
- Principle of Territoriality: Article 9 of the Constitution addresses territoriality in ordering legal sources. Universality is a key requirement of the law, embodied in the principle of territoriality, meaning that norms generally apply throughout the state. Provisions with special significance affecting the entire national territory will have higher seniority.
- Principle of Temporality: Laws are generally enacted with an indefinite term, applying to future conduct until repealed by a subsequent law. This principle must be combined with the principle of hierarchy. Repeal requires the new norm to have at least the same hierarchy, but not necessarily the same form. Some laws have a limited duration (e.g., General Budget Law, states of alarm, emergency, or siege, and the Constitution itself).
Constitutional Principle
The Constitution is central to defining the rule of law, separation of powers, and recognition of fundamental rights. It has a crucial legal function with three main aspects:
- Outlines the general legal boundaries of the country.
- Identifies the entities that create law.
- Establishes the hierarchical structure of state norms.
Consequently, the Constitution is the apex of the sources of law. In addition to these sources of law creation, there are sources of law manifestation. Changing from one constitution to another alters the source of law creation and its expression, representing a profound change in a country’s legal system—a radical revision of the entire system. Thus, the concept of “source of law” refers not only to the individuals or groups with the power to create legal norms but also to how these norms are expressed.