Understanding Sources of Law: A Comprehensive Analysis
Theory of Sources of Law
The concept of ‘source of law,’ originating from Savigny and generalized by numerous authors, particularly within Spanish legal doctrine, is intrinsically linked to the origin and manifestation of law. It’s crucial to distinguish between the ‘source of law’ and the ‘source of legal norms,’ which refers to those who wield the power to create legal norms and the manner in which these rules are expressed. We differentiate between formal and material sources.
Material Sources
The material source represents the creative force with legislative powers, embodying the people holding national sovereignty through the legislature.
Formal Sources
The formal source is the external form of manifestation. According to the Civil Code, this includes law, custom, and general principles of law. The Constitution designates formal sources as the sole responsibility of the State.
List of Sources of Law
The list of sources of law, as defined by the Civil Code, includes:
- The 1978 Constitution: The supreme law of the legal system, its principles inform the interpretation of other rights laws.
- Decisions by the Constitutional Court: As the interpreter of the Constitution.
- Law: May be organic or ordinary. Organic laws concern the development of fundamental rights and civil liberties, while ordinary laws cover any other matter.
- Legislative Decrees: The law allows for the variation of the basic law, authorizing the government to issue rules with the force of law, called legislative decrees.
- Decree Law: The Constitution authorizes the government to issue regulations having the force of law in situations of special or urgent need. The Constitution sets the decree-laws as provisional laws with the aim that the Government will fall into the common temptation to rule behind the parliamentary institutions. Therefore requires that once enacted will be subject to review by the Congress of Deputies.
- Tradition: Arising from within society, tradition is not organized but is imposed by repeated observation of behavior. It comprises a material element (the repetition of a behavior) and a spiritual element (the elevation of this behavior to a model). Traditions are effective only when no law governs the case and are a source of law because the law is determined and also is excluded from the validity of the rule iura novit curia.
- General Principles of Law: Apply in the absence of law or custom, without undermining its legal informant.
- International Treaties: Ratified by Spain, which, once officially published, become part of the legal system.
- European Community Law: Upon Spain’s entry into the European Community, the Official Journal (OJ) became part of the treaties establishing the EEC and the Law of the regions.
General Rules and Regulations
The table of laws concludes with general rules and regulations, the legality of which is controllable by any Ordinary Court.
The Court
The Court is identified with the criteria laid down by the judges and courts in their daily task of interpreting and applying the law, strictly in line with the doctrine established towards the Supreme Court, judges like any authority are subject to the rule of law. The Supreme Court has as its basic principle to resolve the appeals. Thus, appeal and the Supreme Court respond to a unifying function of the correct interpretation of legal norms on the part of judges and courts.