Spanish Sources of Law: Constitution and Civil Code

Sources of Law: Constitution and Civil Code

Sources of Law: Constitution and Civil Code

In a technical legal sense, the term 'sources of law' refers to the various manifestations of law in a given system — that is, the different elements of a legal system, such as laws, decrees, judgments, legal custom, etc. It is not uncommon for the term 'source' to be used simultaneously in these two senses, and for references to the courts as a source or origin of the law.

For historical reasons, the listing of the various sources and their priority is set out in the Civil Code. However, the juridification of the Constitution in the twentieth century has made the Constitution progressively more decisive as a source, since it provides essential aspects for the production of written rules issued by state organs and establishes principles and rules that significantly affect the regulation of other sources.

When referring strictly to the sources of Spanish law, Article 1 of the Civil Code establishes the law, custom, and general principles of law.

Finally, the Civil Code, in its 1973 reform, recognized the jurisprudence of the Supreme Court as a "cuasi-fuente" (quasi-source) of law. This means that jurisprudence complements the legal framework when the doctrine consistently set by the Supreme Court interprets and explains the law, custom, and general principles of law.

Common Manifestations of Legal Sources

• Laws (statutes enacted by the legislature)
• Decrees and regulations (executive and administrative rules)
• Judicial decisions (jurisprudence, including Supreme Court doctrine)
• Legal custom (long-established practices recognized by the law)
• General principles (fundamental legal principles applied by courts and legislatures)

Aggravated Constitutional Reform Procedure

Aggravated Reform Procedure

The procedure for an aggravated constitutional reform is extremely rigid and complex. This procedure is required when the proposal intends to overhaul the Constitution or, even if only partial, affects the Preliminary Title, the Second Chapter, the First Section of Title I, or Title II.

The Constitution provides that the decision to undertake a reform mentioned in Article 168.1 must be approved by a two-thirds majority of each chamber. If the principle of constitutional reform is approved by that majority in both houses, the legislature must be dissolved immediately.

The newly elected chambers must first ratify the decision; a simple majority in favor of the reform is sufficient. If ratified, they then study the text of the bill or constitutional amendment, which must be approved in both houses by a two-thirds majority.

Once approved by Parliament, the reform must be submitted to a referendum for ratification. The holding of this referendum is subject, by virtue of Article 4.1 of Law 42/1980, to certain limitations: it cannot be held while a state of emergency or siege is in force, nor within ninety days thereafter.

Steps in the Aggravated Reform Process

1. Approval of the principle of reform by a two-thirds majority in each chamber.
2. Immediate dissolution of the legislature.
3. Election of new chambers.
4. Ratification of the decision by the newly elected chambers (simple majority sufficient).
5. Approval of the amendment text by a two-thirds majority in both houses.
6. Submission of the approved reform to a referendum, subject to statutory restrictions.