Understanding the Presidential System and the Force of Law

The Presidential System

The Presidential System

While both systems may appear different, one featuring a monarch with secretaries and the other a parliament making crucial legal rules, the political formula known as "presidential leadership" relies on the president's moral and political influence to implement decisions within the state structure.

The presidential regime, similar to a limited monarchy, allows the legislature and executive to perform their roles without creating dependency relationships.

Basic Features of a Presidential Regime:

1. Monistic Executive Power: The head of state and head of government are the same person: the president. The president, directly elected by the people, possesses popular legitimacy and governs. They freely appoint and dismiss government members, known as "secretaries." There is no ministerial endorsement.
2. No Trust Relationship: There is no trust relationship between parliament and the president, meaning no endowment, vote of confidence, or censure motion. The president exercises powers during their tenure, while parliament acts as the opposition.
3. Parliament Cannot Be Dissolved: The parliament cannot be dissolved by the president.
4. Rigid Separation of Powers: Government members are not part of parliament. This system includes balance mechanisms:

• Parliament's primary mission is adopting the budget, which conditions the president's actions. The president, in turn, influences parliament through their party and "messages."
• For certain presidential appointments, parliament conducts prior hearings to assess candidates' suitability. Conversely, the president can veto laws passed by parliament.

Strength and Method of Law

Strength and Method of Law

The force of law can be:

• Active: The ability to repeal previous rules that contradict its contents and innovate the legal framework.
• Passive: The ability to be immune to subsequent legal standards, except those with equal passive force of law.

The force of law can be defined as a written legal standard approved in parliament after deliberation and accepted because it is considered approved by its recipients.

However, secondary rules, called Regulations, lack the force of law because they are not approved by their addressees but accepted because they originate from a legitimate power.

The force of law can be explained based on two complementary concepts:

1. Material Concept of Law: A view of the law based on its content. It is the most important legal rule after the Constitution and can innovate the legal framework, regulating the most important subjects.
2. Formal Concept of Law: A view of the law based on the organ that produces it and the development procedure. It is any rule of law emanating from a representative Parliament, regardless of content.

Mechanisms to Differentiate Primary Rules:

• The Penalty: The "signature" of the law, a mechanism demonstrating the state's receipt and incorporation of the law. It involves the head of state's public collaboration with parliament to stamp the law. It usually includes the king's signature (though the king cannot refuse to sanction).
• Enactment: Associated with the penalty, it defines that the standard has been improved and should be obeyed.
• Publication: Occurs by inserting the law in the BOE (Boletín Oficial del Estado) for the knowledge of citizens and authorities obligated to deliver it. A law that is not published does not exist.