Public and Private Law: Sources, Divisions, and Powers of the State

Summary

This document outlines the main division of law into public and private branches, then explains the direct and indirect sources of law such as legislation, custom, general principles, case law and treaties. It closes with the separation of legislative, executive and judicial powers, describing the role of the Cortes Generales, the Government and the judges.

Key points

Law is divided into public law (regulating the State and public affairs) and private law (regulating relations between individuals).
Public law includes administrative, criminal, tax, procedural, Community, labor and public international law.
Private law includes civil, commercial, employment and private international law.
Direct sources of law are legislation, custom and general principles of law.
Indirect sources of law are case law and international treaties.
The legislative power is held by the Cortes Generales, made up of the Congress of Deputies and the Senate.
The executive power resides in the Government (president, vice presidents and ministers), which sometimes also performs legislative and judicial functions.
Judicial power is administered on behalf of the King by judges, who are independent.

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Division of Law

There are two main groups: public law and private law, further subdivided into different branches:

Public Law

Public law regulates the activity of the state and public affairs, including their relationships when acting in an official capacity with the public. It is divided into:

Administrative Law: Contains the rules governing the activities and operation of the State and bodies for political execution.
Other Branches: Public international law, criminal law, tax law, procedural law, Community law, and labor law.

Private Law

Private law governs relations between individuals. It is divided into:

Employment law
Private international law
Civil law
Commercial law

Sources of Law

Sources of law refer to the origins and manifestations of legal rules. We can classify the legal system into:

Direct Sources

Law: The rule issued by the appropriate authority, with due formalities, common character, just, stable, and sufficiently published. Laws are created and approved by the general courts (legislative body).
Custom (Practice): The standard of conduct born of repeated and ongoing social practice and regarded as binding by the community.
General Principles of Law: These are unwritten ideas underlying the legal system and act in the absence of applicable law or custom.

Indirect Sources

Case Law: Criteria that the Supreme Court repeatedly manifests in its rulings.
International Treaties: Agreements governed by international law, concluded between Spain and other countries. Treaties made within Spain have the force of law and are reflected in the Constitution.

The Division of Powers

There are three types of powers:

Legislative Power

The Cortes Generales (Parliament) represent the Spanish people and consist of the Congress of Deputies and the Senate. Deputies and senators are elected every 4 years by universal suffrage. Parliament approves the general state budget, controls the action of government, is inviolable, and its members enjoy immunity.

Executive Power

The executive power resides within the Government, which is responsible for executive functions. The government comprises the president, vice presidents, and ministers. Sometimes, it also performs legislative and judicial functions.

Judicial Power

Justice comes from the people and is administered on behalf of the King by judges. Judges and magistrates are functionally disconnected by the principle of independence.

FAQ

What is the difference between public and private law?

Public law regulates the State and its relations with the public when acting in an official capacity. Private law governs relations between individuals.

What are the direct sources of law?

The direct sources are law, custom and general principles of law. Law is issued by the appropriate authority, custom is a repeated social practice regarded as binding, and general principles are unwritten ideas underlying the legal system.

Who holds the legislative power in Spain?

The legislative power is held by the Cortes Generales, which consist of the Congress of Deputies and the Senate. Their members are elected every four years by universal suffrage.