Understanding Spanish Law: Sources, Application, and Government Rules

Sources of Law in Spain

Under Spanish law, Article 1 of the Civil Code outlines the sources of law in the following order:

• Law
• Custom
• General Principles of Law

If a case lacks an applicable law, custom shall apply. If there is no custom, the general principles of law (derecho) apply. Law is produced by bodies with legislative power.

Ordinary Laws

Ordinary laws originate from Parliament and are approved by a simple majority in both the Congress and the Senate. A simple majority is achieved with half plus one of the representatives' votes. These laws may be approved by both Congress and the Senate or the legislative standing committees, provided the ability to approve has been delegated.

Organic Laws

Organic Laws are adopted through a special procedure requiring an absolute majority of the members of Congress (at least 176 deputies). Laws governing fundamental rights, civil liberties, approving the Statutes of Autonomy, and regulating the system of elections are considered organic.

Application of Rules

Laws must be published in:

• Official State Bulletin (BOE)
• Government Gazette
• Official Journal of the Autonomous Communities (e.g., DOGA in Galicia)
• Official Journal of the European Community

The Government can issue an executive order without authorization from the Cortes, subject to later Parliamentary control to determine its continued validity.

Custom

Costumbre (Custom) is a standard of conduct born of social practice and considered binding by the community. Its use is declining. The practice must be adopted and proven.

General Principles of Law

General Principles of Law are a series of general statements that serve to resolve particular issues. They are found in the Constitution.

Enactment and Publishing of Law

Enacting law means targeting those who must apply the law. Publishing law involves disseminating it through the Official Bulletin.

Knowledge of the Law

Need knowledge of the laws. Ignorance of the law is no excuse for compliance. Citizens and public authorities are subject to the Constitution and other legislation.

Government Rules with the Force of Law

There are two types of rules drawn up by the Government:

Decrees

These are rules with the force of law issued by the Government under authorization granted by the courts, noting the subject to be regulated. There are two types of authorization:

• Authorization to draft a text articulated: In these cases, the authorization is made by a Basic Law, which defines the object, range of regular matter, and the principles and criteria the government should use to draft a standard.
• Authorization to rewrite legal texts: Consists of consolidating all kinds of rules and laws governing the same subject into one statute.

Decree Laws

These are rules that the government may dictate in case of urgent need.