Understanding Key Legal Principles: Judicial Review, Sources of Law, Rule of Law, and Fundamental Rights

Judicial Review

Definition: Judicial review is the doctrine under which legislative and executive actions are subject to review and invalidation by the judiciary. Specific courts with judicial review power must annul any act of the State that they find incompatible with a higher authority, such as the Constitution. Judicial review differs between countries.

Models:

• United States: No specific courts are designated for judicial review. The concept developed from a case and precedent, with the Supreme Court having the ultimate authority.
• Germany, Belgium, and Spain: These countries have a specialized Constitutional Court to handle judicial review. However, not all cases are constitutional.

Sources of Law

Primary Sources of Law:

1. Constitution
2. Statutes (Laws of the Parliament/Legislative)
3. Regulations (Executive)
4. Spanish Civil Code (art. 1): Legislation, custom, and general principles of law.

Secondary Sources of Law:

1. Customary Law
2. General Principles of Law
3. Others: Case Law and Constitutional Conventions

Regional Sources of Law:

1. National Constitution
2. Statute of Autonomy
3. Statutes
4. Regulations

Principles Governing Sources of Law:

1. Hierarchy: Higher-ranking sources of law prevail over lower-ranking ones.
2. Competence (Federal): Regional laws versus federal laws.

Differences within Some Sources of Law:

1. Constitution
2. Statutes/Laws Passed by the Parliament:
   1. Organic Law:
      • Covers issues that appear in the Constitution.
      • Requires special approval.
   2. Statutes: Cover issues not appearing in the Constitution.
   3. Regulations

International Sources of Law:

1. Monist: Constitution is above international law (e.g., Netherlands).
2. Non-Monist: Constitution is below international law (e.g., United Kingdom).

Rule of Law

Introduction:

1. The Rule of Law is the principle that both the State and the law are intertwined.
2. The power of the State is limited by the law.
3. Before the Rule of Law, there was absolutism, where the King held supreme power.
4. Now, we have the Rule of Law.
5. Developing the Rule of Law involves the separation of powers.
6. Democracy, where the people hold power, does not necessarily imply the Rule of Law (e.g., Hitler's regime).

History:

1. The emergence of the Rule of Law coincided with the end of absolutism and the rise of the bourgeoisie (18th-19th centuries).
2. It was a reaction against absolutism.
3. Proclamation of the Rule of Law in the 18th century: The Declaration of Independence of the United States and the French Revolution.

General Principles of the Rule of Law:

1. Guarantee of fundamental rights.
2. Administration is limited and subject to the Rule of Law.
3. Everyone is subject to the law.
4. Separation of powers.

Sources of Law:

1. Legislation
2. Custom
3. General Principles of Law
4. Jurisprudence

Classification of Law:

1. Public Law: Governs relations between State and State, and State and Individual. Examples include Public International Law, Fiscal Law, Administrative Law, Procedural Law, Criminal Law, and Political Law.
2. Private Law: Governs relations between individuals. Examples include Civil Law, Labor Law, and Mercantile Law.

Division of Power:

1. Legislative: Creates and reforms legislation.
2. Executive: Governs and executes legislation.
3. Judicial: Judges and Tribunals.

Fundamental Rights

Introduction:

1. Fundamental rights are an essential part of the Constitution.
2. The Constitution is divided into dogmatic and organic parts.
3. There are two options for recognizing fundamental rights: through the Constitution itself or through international treaties.
4. Judges will apply the highest level of protection.

Classification and Duties:

• 1st Generation: Individual liberties and political rights.
• 2nd Generation: Cultural, economic, and social rights.
• 3rd Generation: Solidarity and environmental rights.
• Duties: Examples include knowing the language and protecting the State in case of war.

Holders of Rights:

1. Age
2. Judicial Decision
3. Nationals versus Aliens

Legal Nature of Rights:

1. Only the rights that are in the Constitution are considered fundamental rights.
2. Positive Law versus Natural Law.

Drittwirkung:

1. German origin (1950).
2. The right of a person to sue another person or the government for the violation of rights.

Equality:

1. Equality in the law.
2. Equality before the law.

Protection of Rights:

1. The Constitution provides the highest level of protection.
2. Constitutional systems: Organic law and Constitutional Court.
3. Individuals can appeal for the protection of their rights.