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.
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.
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.
All laws in Spain must be declared compatible with the Constitution (all laws that contravene the Constitution are invalid). However, it is clear that 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:
In a case where an ordinary court questions a law, only the right of the 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.
The division of powers, a fundamental idea in liberal thinking, is the core of the political system. Although, the Spanish Constitution only establishes the separation of functions. 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.
The sources of law in Spain are:
Jurisprudence is a secondary source.
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).
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:
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.
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.
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