Understanding the Structure and Types of Law
LESSON 4
I. LAW.
1. Concept and Meaning.
The law is the rule of order that follows the Constitution. Rousseau defined it as “an expression of popular will,” an idea that remains relevant today. Besides the Constitution, community law also imposes limits on national law.
The law is the original legal mandate approved by Parliament, only susceptible to judicial review. In federal states, regional legislative parliaments of the federal states or regions also have this capacity. In Spain, there are, therefore, 18 organs of legislative competence, which should indicate the titles of competence.
2. Act Material and Formal Law. Law Degree.
The doctrine distinguishes between formal and material laws. The former are defined according to the above concept. They contain true standards and are formal political mandates, authorizing the performance of duties of an executive nature. The legislature has no limits on regulation by law, except those established by the EC.
Germany has also coined the term “law measure,” which refers to those that seek to solve existing problems that cannot be addressed with existing legislation. This law, however, applies only to the specific case. Laws are divided into:
- a) Singular Laws: These are laws mandating a particular case. They bring a unique event in derogation of the general law and involve legal innovation. That’s why these laws are observed with suspicion and are not allowed to regulate fundamental rights. The TC has highlighted their exceptional character.
- b) Plan Law: These laws attempt to solve a pre-existing reality, containing genuine normative propositions. Once they achieve their purposes, they become outdated.
Both categories are considered laws. A material law example is the codes, while a formal law example is the law that authorizes a budget transfer.
II. THE BOOK OF LAW.
By law, any area can be regulated with discretionary policy, limited only by the EC or the Statute of Autonomy. Constitutions tend to reserve materials to be regulated only by law. For these subjects, regulations may be covered only if enabled by law. The reservation of law can be established as organic or not; if it is organic, it must be developed by the state legislature. Law may also be subject to the Autonomous Communities.
IV. STATE LAW CLASS.
1. Ordinary and Organic Laws.
A) Organic Laws: They were created by the EC in 1978. They are defined by their approval, which requires an absolute majority, and the matters reserved for their regulation include the development of fundamental rights, the Statute of Autonomy, and the general electoral system, among others under the EC.
Organic laws have the same status as ordinary laws. The legal distinction between the two lies in the two previous characteristics. It is possible for laws of nature to mix organic law precepts with ordinary law precepts, each regulated according to their characteristics.
Finally, the political significance of organic laws (LO) lies in their creation, modification, or termination by delegated legislation, by law of Commission, or by popular initiative.
B) Statute of Autonomy: They are the first LO and standard HRO. They are also subordinate to the EC and have a constitutional role for the Autonomous Community (CA), governing its domestic and regional government levels. No state law may affect the competence of the Statute once approved. Furthermore, the structure of the Constitution fits the general outline of the Constitutions, including the name of the CA, territorial boundaries, organization and headquarters of the autonomous institutions, and powers assumed by the CA. The reform of the Statute will follow the same procedure as any other LO.
2. Laws of Bases: They refer to legislative decrees.
3. Basic Laws: These fall within the scope of relations between the state and autonomous systems. The EC and the statutes collect some basic legal matters which correspond to the state, while their policy development and implementation correspond to the Autonomous Communities. The basic legislation should be established by law.
The most important problem is to determine what is basic, as only this corresponds to state law. The TC has stated that the implementation should cover the entire state. There are two concepts: material, which seeks to prevent the Autonomous Communities from having to wait for state approval of a basic law, and formal, which postulates that the legislator must explicitly define what provisions are basic and which are not.
The basic state law is an autonomous legislation to limit development. It can also impose regulatory minimums.
4. Laws of Harmonization: These also fall within the scope of relations between the state and the autonomic system. Their purpose is to harmonize the provisions of the Autonomous Communities, even on matters within their competence, for general interest. The interpretation of these laws must be restrictive.
They have two required budgets:
- a) Requirement of National Interest: There must be harmony, which must be assessed by the absolute majority of each chamber.
- b) These laws can only be issued in cases where competition is solely on the subject of the Autonomous Communities.
Regarding the content of harmonizing law, it imposes the most restrictive interpretation that it contains only the principles necessary to harmonize.
5. Laws Framework: These also fall within the scope of relations between the State and the Autonomous Communities, assuming a technique for delegating legislative powers of the Autonomous State. These laws have no such restriction and can include appropriate bases. As for the impact, the law grants a new competency framework to the Autonomous Communities. The framework law may include a possible revocation of the delegation.
6. Budget Laws: Through the budget, the most important controls on the government chambers are conducted. The budget only allows the presentation of a draft by the Government. The approval process is regular.
The contents of this Act include the estimated revenue and expenses for a financial period (usually 1 year), although the TC has admitted the inclusion of other matters related to the budget.
7. General Laws Approving Financial Plans: These are those that the TC understands are permissible for inclusion in the Budget. The purpose of these laws is laid down in Article 131 of the EC. Materials should not be permitted outside of this article, as these laws also follow a special procedure. These rules serve only to general management plans for the economy. Article 131.2 EC allows the participation of the Autonomous Communities in these projects that affect them.
V. THE AUTONOMOUS.
One of the most crucial elements of political decentralization is the legislative capacity of the Autonomous Communities, recognized indirectly by the EC. Regional laws are equal to state laws (unless they can be organic or related to the state), meaning they have the same hierarchical level and are subordinate only to the EC and the Statute (in the case of basic legislation, also the “constitutional block”).
The procedure for drafting and approval of regional legislation is very similar to the state, except that the Autonomous Communities have only one House. The passage of these laws also requires the King’s approval, and publication is obligatory in the Official Gazette of each CA and in the Official Gazette (BOE).
VI. RULES OF THE EXECUTIVE BRANCH OF THE VALUE OF LAW.
1. Decree-Laws (D-law): These are temporary legislative provisions that the Government may issue in cases of extraordinary and urgent necessity. Their value is equivalent to law and may repeal other provisions of the same rank. It is therefore necessary to demonstrate a case of extraordinary and urgent necessity. The assessment of this situation is for the government first and then for Parliament, which should endorse this D-law. If there is action, the TC will also assess the situation.
On the other hand, there is a material limit: the D-laws cannot affect the regulation of basic state institutions, the rights, duties, and freedoms of citizens, the regime of the Autonomous Communities, or the general electoral law (art. 86 CE).
The provisional nature of the D-law leads to immediate parliamentary review within 30 days from the enactment of the D-law, during which it must decide whether to validate or repeal such law. The validation or repeal is published in the BOE. If not validated within 30 days, the D-law becomes “outdated”.
2. Legislative Decree (DL): Executive Branch standards are also of value to law, produced by Parliament delegation. This only sets the standards to follow and may not delegate matters Act (LO). The DL can be state or autonomous.
A) Classes:
- a) Laws and Rules Articulated Texts: The delegation is made by a Law of Rules, which cannot be changed. These are not directly applicable. No items are sorted, leading to the articulation of which is leading to the articulated texts.
- b) Laws and Sections Merged Delegation: The delegation is set to an ordinary act, limiting the Government to consolidate existing legal texts. The delegation Act merely provides the purpose and scope of consolidation, without imposing bases. The consolidated text is prejudicial and therefore leads to the repeal of laws that were the subject of consolidation.
B) The Scope and Content of the Laws of Delegation: The delegation must be expressly given to the Government, and a part of it is not valid. It sets a deadline for their exercise, after which the delegation ‘expires’. The delegation shall expire upon the issuance of the DL and cannot be used again.
C) The Control of the DL: The first control is the ratification by Parliament of the text of the Government, but control formulas can also be established in the law itself of delegation. There may also be control by regular T vice based on ultra vires (DL excess or infidelity to the law of delegation). Finally, of course, the TC.
VII. CONSTITUTIONAL CONTROL LAWS.
1. General Considerations:
The TC has the function of controlling the constitutionality of the law in two ways: appeal of unconstitutionality and the question of unconstitutionality.
The constitutional complaint is general and abstract, affecting only the validity of the law. This remedy is not open to all citizens. The legitimacy is limited to state bodies or their members and Autonomous bodies. If the law is autonomous, the interposition of the Government shall have suspensive effect. The appeal must be imposed within 3 months from the publication of the law.
The constitutional question is raised by judges and T when they believe that the rule to apply incurs in unconstitutionality. This should be done once the process and the sentencing period are complete. The resolution of the TC binds the T who introduced the issue. Furthermore, when solving an amparo, the Board may determine the constitutionality of the law to apply, in which case it will be repealed by the full TC.
The vices of a rule can be competitive, and materials processing procedure or of substance.
Regarding the DL, the TC sees that it is perfectly suited to the law of delegation and that the government has acted consistently.
The other rules without the force of law may also be unconstitutional, but the TC is not the only body able to control them. Ordinary courts can also do so.
2. Content and Effects of Judgments of the TC:
- a) In Proceedings Unconstitutional: The ruling is binding on all public authorities and has general effects since its publication in the Official Gazette. It has the value of res judicata. The content may be against the applicant, allowing or interpretive. The ruling declaring the unconstitutionality of a rule will not result in the revision of the judgments of the ordinary T based on this rule, except in criminal proceedings which would be beneficial.
- b) In the Habeas Corpus: If the TC declares the nullity of the rule, the Board must refer the matter to the House for resolution.