Blanket Criminal Laws and the Spanish Penal Code

Criminal Law and the Legal Order

The starting point for the discussion of the role of criminal law takes place through binding structure or external standards. Criminal law, from an objective point of view, can be viewed as a set of rules comprising the legal system.

Formal and External Structure

Formal and external structure is established because of two elements: a legal premise (budget) and the consequence (e.g., crime and punishment).

Complete and Incomplete Criminal Laws

We witness complete criminal law when we appreciate both sides of the rule. We will always find criminal statutes that contain these two elements; however, we often encounter so-called incomplete criminal laws. This term refers to any rule where one of the two parts is missing.

Within this genus, we find a specialization. When the missing element is the premise of fact, the rule is called a blanket criminal law (ley penal en blanco).

The Spanish Penal Code Structure

In the Spanish Penal Code, if we examine the special part, most criminal laws are complete. Conversely, if we look at the general part, we see that rules usually lack one of the two parties (the main rule). The general part of the code is always complementary, providing rules that allow us to apply the special part (e.g., to punish someone who kills, one must first refer to the general part).

The special part is considered the principal section of the Code (Books II and III), containing descriptions of crimes and misdemeanors (faltas).

Concepts of Blanket Criminal Laws

Focusing on blanket criminal laws within Spanish doctrine, three concepts are handled:

• Extensive or Wide Concept: Any rule which, lacking the legal premise, refers to other regulations to complement it, regardless of where that rule is located. This includes cases where an organic law is used to complete the budget (e.g., Articles 386 and 387).
• Intermediate or Restrictive Concept: This applies only to laws where the premise is not determined and refers to a legislative authority or normative hierarchy of a lower grade than the Criminal Code. This is a matter of both legislative technique and legislative competence.
• Moderate View (Intermediate Concept): Criminal law is considered "blank" whenever the premise is placed outside the Code, regardless of whether the status of the referenced law is inferior.

While the restrictive concept is closest to the technical definition of blanket criminal laws, the middle position is often considered the most appropriate (e.g., Article 371 of the Criminal Code).

The Principle of Legality and Legal Challenges

The fundamental problem with blanket criminal laws is the potential breach of the principle of legality. When referring to a law of a different nature, it indirectly grants criminal legislative capacity to a body that does not possess it. The principle of legality requires that criminal matters be regulated strictly by organic law.