The Sources of Law

Question 1

How were the sources of Spanish Law regulated before the Spanish Constitution entered into force?

Answer 1

They were regulared by the Civil Code

Question 2

What are the sources of Spanish Law?

Answer 2

Law, Custom, and the General Principles of Law

Question 3

What are the characteristics of the Spanish Constitution?

Answer 3

• Imposed or popular
• Written and in a single document
• Rigid
• Not formal
• Extension
• Normative constitution
• Ideological / Utilitarian
• Autonomous State
• Parliamentary monarchy

Question 4

Why is the Spanish Constitution imposed or popular?

Answer 4

Because it obeys the democratic principle, without considering that the Crown participated in the constituent power.

Question 5

To which system is the single document Spanish Constitution opposed to’

Answer 5

In front of the Francoist system, based on the successive publication of different texts of “fundamental” rank.

Question 6

Why is the Spanish Constitution rigid?

Answer 6

It reaches levels of almost intangibility with respect to the material areas protected by the reform procedure established in Art. 168

Question 7

Why is the Spanish Constitution not original?

Answer 7

It is influenced by international law, patriotic constitutionalism, and foreign constitutionalism. References were also taken from Germany and Italy. The northern monarchies also influenced the configuration of the functions of the Monarch.

Question 8

Why is the Spanish Constitution extended?

Answer 8

It is the most extensive Spanish Constitutional text of the entire history of constitutionalism after the Cadiz Constitution of 1812. It may also be said that there are certain aspects that are not regulated, like the system of sources, and that others have come to de-constitutionalize; thus, in spite of its extension, our Constitution appears as unfinished, as incomplete, as open

Question 9

Why is the Spanish Constitution normative?

Answer 9

It is a constitution that may not enjoy the same professional character as the one of the Second Republic, but it is much more linked to the reality it intends to regulate.

Question 10

Why is the Spanish Constitution ideological and utilitarian?

Answer 10

Every constitution contains a specific ideology, which does not mean that this ideology entails a dependence, a determinism of the legal mechanism that appear as mere instruments to achieve the exclusivity of that ideology. In our democratic system, in addition, due to the second paragraph of art. 9, we find a transformational potentiality of the system that makes the ideology underlying the constitutional background. This system can be taken to more leftist areas, within the limits of a representative democratic system, in which the market economy prevails; art. 38

Question 11

Explain the Autonomous State in the Spanish Constitution

Answer 11

It assumes at once the unity of the State and its realization within a political decentralization. This not merely administrative realization now exceeds the competence level of some federal States.

Question 12

Who is the Head of the State in Spain according to the Constitution?

Answer 12

It advocates a Monarchy that denominates a parliament and which qualifies as “political form”, according to the doctrine, to honor the important role of the current Monarch in the political transition.

Question 13

Why is Spain a parliamentary system according to the Constitution?

Answer 13

This system is the only one in which the Crown can survive, being at the same time the most convenient after the Franco’s power concentration which did not wish to fall into an assembly system.

Question 14

What are organic laws? What is the condition for approval, modification, or repeal of the Organic Laws?

Answer 14

The organic laws are those relating to the development of fundamental rights and public freedoms, which approve the Statutes of Autonomy and the general electoral system, and other provisions of the Constitution. The approval, modification, or repeal of the Organic Laws will require a majority absolute of the Congress, in a final vote on the whole project.

Question 15

What are the three ordinary laws contemplated by the Constitution?

Answer 15

• Laws of Plenary and Laws of Commission
• Budget Laws
• Possible laws ratified by referendum

Question 16

What are the Laws of Plenary and Laws of Commission?

Answer 16

Art. 75 provides for the possibility that the Chambers delegate to the Standing Legislative Committees the adoption of draft laws and bills.

Question 17

What are the budget laws?

Answer 17

It is a special modality provided in article 134

Question 18

What are the possible laws ratified by referendum?

Answer 18

These are considered the manifestation of the electoral body in a text approved by a legislative body.

Question 19

What is the double nature of the Autonomus System? Explain them

Answer 19

• Basic institutional norm of the Autonomous Community - As well as supreme norm of its own juridical order
• State law - It is in the legal system of the State with the organic rank

Question 20

What are the ways to access to the autonomy, according to the Spanish Constitution?

Answer 20

The normal or common assumption of access to limited autonomy, and the special case of access to full autonomy

Question 21

What are the steps to follow for the normal or common assumption of access to limited autonomy?

Answer 21

It requires the approval of the States, and it includes:
1. The elaboration of the draft Statute corresponds to an Assembly composed of the members of the Council or inter-state organ of the affected provinces and by the Deputies and Senators of the same.
2. Once elaborated, it is elevated to the Cortes Generales for its processing as an organic law.
3. Once this law has been approved, sanctioned by the King, and published, the Autonomous Community is constituted, which will have its organs and exercise its functions in accordance with the Statute.
In this case, the reform of the Statutes shall be in accordance with the procedure established there in (in all cases, approval by the respective Assembly is required) and, in any case, approval by the Cortes Generales through an organic law.

Question 22

What are the steps to follow for the special case of access to full autonomy?

Answer 22

It is more complex
1. The elaboration of the draft Statute corresponds to an Assembly composed of all the Deputies and Senators of the respective affected provinces.
2. The project is submitted to the Constitutional Commission of the Congress of the Deputies, who together, with a delegation of the Assembly that elaborated it, must determine the final content of the project.
3. If there is an agreement between the Constitutional Commission and this delegation, the text is submitted to a referendum of the electoral body of the provinces affected by the Statute.
a. If the result it positive, the Cortes must ratify it. After the sanction and promulgation by the King and the publication, the AC is constituted.
b. If no agreement is reached between the Constitutional Commission and the delegation of the Assembly, the draft of the original Statute is processed as law before the Cortes Generales. Once approved, it is submitted to popular referendum in the affected provinces; if approved, it is sanctioned, promulgated, and published, with the same effects as in the previous case.
In this case, in addition to the procedures of the common assumption, a referendum is required among the electors of the provinces integrated in the AC.

Question 23

What are the Decree-Laws?

Answer 23

• They are legislative provisions that can only occur in cases of extraordinary and urgent need.
• They are powers of the Government that enjoy the same normative range as the laws but not of the same nature.
• There must be a connection between the defined situation and the measures by which the decree-law is adopted.

Question 24

What are the legislative decrees?

Answer 24

They are rules with a force of law dictated by the Government, by virtue of an express authorization of the legislative delegation denominated by the Cortes Generales. This legislative decree must respect the framework and scope of the delegation.

Question 25

In the regulatory authority, what are the two types of regulations? Which ones are subject-matter related?

Answer 25

Executive and independent; normaltive or legal, and administrative or organzational regulations

Question 26

What are the executive regulations?

Answer 26

Those that occur in the execution of a law, to which they are linked

Question 27

What are the independent regulations?

Answer 27

They occur without there being a revious law to execute

Question 28

What are the normative or legal regulations?

Answer 28

Those that create a new right or modify it, affecting the rights and duties of citizens

Question 29

What are the administrative or organizational regulations?

Answer 29

They are configured as powers of self-disposal of their respective holders

Question 30

Is jurisprudence a source of law’

Answer 30

Art. 1.6 of the Civil Code does not configure jurisprudence as a source of law but attributes to it a function that complements the legal system.

Question 31

What is the role of constitutional custom?

Answer 31

The role of custom is to fill gaps within the corresponding legal systems, to adapt existing regulations to the social reality of the moment and to guide the application of both precepts.

Question 32

What are the two elements in constitutional custom according to the doctrine

Answer 32

Constant and uniform repetition of an act, and the requirement that this repetitive action is inspired by a conviction of compulsion

Question 33

Which are the General Principles of Law

Answer 33

• Constitutionality
• Legality and normative hierarchy
• Publicity of the rules
• Non-retroactivity of non.favorable or restrictive provisions of individual rights
• Legal certainty
• Interdirection of the arbitrairness of public powers
• Public resposibility