Law of Spain

The Law of Spain is the legislation in force in the Kingdom of Spain, which is
understood to mean Spanish territory, Spanish waters, consulates and embassies, and
ships flying the Spanish flag in international waters. It is also applicable to the Spanish
armed forces worldwide. Spanish law stems from the Spanish people through
democratically elected institutions. Equally, part of the legislation comes from the
supranational institutions of the European Union, which also enjoy democratic
legitimacy.

Characteristics[edit]
Spanish law follows the continental system, which means it is supported principally by
the law in the broad sense (laws and regulations) and to a lesser extent by judicial
decisions and customs. Likewise, it is a complex law, in which various autonomous
community legislation coexists with the national.

Constitutional supremacy[edit]
The supreme Spanish law is the Spanish Constitution of 1978, which regulates the
functioning of public bodies and the fundamental rights of the Spanish people, as well
as the organization and competencies of the different autonomous communities. The
Constitution, as well as being directly applicable by the judiciary, enjoys a material
supremacy that determines the rest of the laws in Spain.

Constitutional control[edit]
All laws in Spain must be declared compatible with the Constitution (all laws that
contravene the Constitution are invalid). However, it is clear that it a public body is
needed to regulate the fulfilment of this rule. In Spain's case, a Constitutional Court
exists, which follows the Kelsenian (or Austrian) model.
Following this doctrine, the constitutional court has two basic functions:

Ensuring all law is compatible with the Constitution.

Declaring the nullity of laws which contravene the Constitution.

In a case where an ordinary court questions a law, only the right of declaration is
available, and it must go to the Constitutional Court with the question of
constitutionality so that it can be declared, thus it is the only body which possesses the
power to reject laws.

Separation of powers[edit]
The division of powers, a fundamental idea in liberal thinking, is the core of the
political system. At its heart, national sovereignty permits the election, by universal

suffrage (men and woman older than 18), of representatives of the sovereign people in
the Cortes Generales. The Cortes Generales exercise legislative power through two
chambers, the Congress of Deputies and the Senate, choose the Prime Minister and
control the actions of the executive power, which must obey the law.
The judicial powers fall into the hands of the judges and courts, an office which the
public has access to, and in a jury, which is formed by nationals chosen by lottery in
every case. The Constitutional Court controls the laws and the actions of the public
administration must fit into the Magna Carta.

Sources of law[edit]
The sources of law in Spain are:

Law

Usage

General principles of law

Jurisprudence

Jurisprudence is a secondary source.

Organization of Spanish public law[edit]

1. Constitutional law. This is the collection of laws and judicial institutions
related to the organization of the constitutional bodies and the exercise of the
citizen's basic rights and freedoms.
2. Administrative law. This regulates the organization and functioning of the
powers and bodies of the state and its relations with individuals.
3. Criminal law. This regulates the so-called punitive (disciplinary) actions.
4. Process law. This is integrated by the collection of laws that regulate judging
procedures.
5. Financial and tax law. This is a collection of laws that organize or study the
resources that constitute the finances of the State and the other public bodies.
They regulate the procedures to obtain deposits and to regulate expenses and
payments.
6. International public law. This is integrated by the laws that regulate the
judicial relations between each state and the other members of the international
community.

Organization of Spanish private law[edit]

1. Civil law. This is integrated by the collection of laws that regulate the person,
the family, personal assets, contractual relations and the extra contractual civil
responsibility . Within this we find the common and local law.
2. Commercial law. This is the collection of laws that regulate law relating to
business, within the world of business.
3. Labour or social law. This regulates the relationships between employees and
employers. Complains about social security fall under public law.
4. International private law. This regulates the relationships between physical
and judicial persons of different nationalities.

Public and private law[edit]

In Spain, within public law is included the regulation of the highest state institutions,
constitutional law, which regulates the organisation, competencies and functioning of
the constitutional bodies (the State Council, the Account Court, the Constitutional
Court, the General Council of the Judicial Power of Spain, etc.), constitutionally
recognised rights and the constitutional mechanisms to do with the interference by the
public bodies with individual freedoms, rights and guarantees.
Also included within the realm of public law are criminal law, process law, financial and
tax law and certain parts of labour law (infractions and sanctions of the public order, for
example).

Hierarchy of laws[edit]
Article 1.2 of the Spanish Civil Code establishes that inferior and superior laws to be
distinguished. However, the relationship between laws is not limited to a question of
hierarchy, but also relationships of competency exist between some laws and others.
With effect to this, the Spanish Constitution of 1978 is the supreme law, which regulates
all the complex relationships between the different laws and their place in the hierarchy.
The hierarchy of Spanish laws is thus:
1. The Constitution.
2. International treaties.
3. The law in its strict sense: Organic Law (which requires an absolute majority
from the Cortes Generales), ordinary law and regulatory laws (amongst which
are found the Royal Decree of Law and the Legislative Royal Decree).
4. Laws stemming from the executive, with its own hierarchy based on the function
of the body that made them (Royal Decree, Decree, Ministerial Order, etc.).
Besides this, the Spanish Constitution establishes the competency of the Autonomous
Communities with regard to the regulation of certain areas, and their ability to create

legal laws via their own Parliaments. In a procedure between the autonomous
parliament and the national parliament the Statute of Autonomy exists, which is the
fundamental law for the Autonomous Communities. After this, the hierarchy of laws
will be the law dictated by the autonomous parliament with regard to its regulatory
competencies, dictated by the autonomous executive.
Local authorities do not have legislative abilities even if they possess regulatory
authority.
The relationship between autonomous and national laws depends the competencies
established in the Constitution and in the respective Statute of Autonomy. The
Constitutional Court is the body with the power to decide if a law is constitutional or
not as well as the power to resolve conflicts regarding competencies between the State,
the Autonomous Community and the Local Authorities. Only European Community law
in line with precedential Spanish Constitution 1978, provincial, diplomatic and judicial
findings can be considered to have standing. Lack of a prior challenge does not negate
future negation based on the national law. Spanish culture restrains many challenges
that knowledgeable lawyers are prepared to pursue if required by a case.

Relationship between EC and Spanish law[edit]

As well as these three levels, reference must be made to EC law, which is an
autonomous legal system applicable in Spain and whose laws are sovereign over
national laws with virtue to the hierarchy of sources, which places international treaties
at a higher level than the law. Regarding the Constitution there is a great debate between
Constitutionalists and Communitarians as to which is supreme. For the former the
Constitution is supreme, whereas for the latter the Treaties are supreme. In practice, the
only time in which the Constitution and Treaties conflicted, the Constitution was
modified to be in line with the Treaties.
On its part, EC law is divided into original and derived law, the original having its
origins in the Treaties ratified by Spain, and the derived emanating from the EC
institutions.
All laws stemming from EC institutions are directly applicable in Spain in virtue of the
Treaty of the European Union, ratified by Spain and thus part of the internal Spanish
law. Given that the treaties have a higher hierarchical position compared to laws, in the
case of conflict the Treaties will be given primacy.
Within EC law it is necessary to distinguish between directives and regulations.
Directives need the Member State to apply them by passing laws whereas regulations
are directly applicable.

Interpretation of laws in Spain[edit]

The Spanish Civil Code regulates the interpretation of laws in Spain, and establishes the
following:

3.1. Laws are to be interpreted according to the proper meaning of their words, in
relation to their context, historic and legal records and the social reality of the time in
which they have to be applied, paying particular attention to the spirit and finality of
the above. 3.2. Equity must be considered in the application of laws, although the
Courts' decisions can only exclusively rest on this when the law expressly permits this.
Article 3 Spanish Civil Code
4.1. The analogous enforcement of laws will occur when the laws do not contemplate a
specific supposition, but they
Article 4 Spanish Civil Code