Keith Mack
The Spanish legal system is a civil law system, based on comprehensive legal codes and laws rooted in Roman law. Unlike common law systems, where judges create law through precedent, civil law systems attribute law creation to the Parliament, and judges are limited to applying the law. The Spanish Constitution of 1978, which forms the basis of the legal system, recognises the nation's complex history and the right to autonomy of the nationalities and regions that comprise it.
| Characteristics | Values |
|---|---|
| Type of Legal System | Civil Law |
| Sources of Law | The Law, Custom, and General Principles of Law |
| Law Creation | Parliament |
| Number of Laws | Much Higher |
| Judicial Branch | Judges and Magistrates |
| Judiciary | Courts and Tribunals |
| Jurisdiction | National Courts and Territorial Courts |
| Judicial Power | Regulated by Organic Law 6/1985 of Judicial Power |
| Civil Judgement | Law 1/2000 |
| Criminal Judgement | Law of September 14, 1882 |
| Administrative Jurisdiction | Law 29/1998 |
| Law of Labour Procedure | Royal Legislative Decree 2/1995 |
| Military Criminal Procedure | Organic Law 2/1989 |
| Judicial Independence | Yes |
| Impartiality | Yes |
| Objectivity | Yes |
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What You'll Learn
- Spain's legal system is a civil law system
- The role of judges in Spain is different from that of judges in Common Law countries
- The Spanish Constitution guarantees respect for essential principles
- The Spanish judiciary is composed of national and territorial courts
- The sources of Spanish law are outlined in Article 1 of the Spanish Civil Code
Spain's legal system is a civil law system
In Spain, the role of judges is very different from that of judges in Common Law countries. In Civil Law systems, the source of law creation is Parliament, and the division between legislative and judicial power is absolute, meaning judges simply apply the law. In Spain, judges are independent and subject only to the law, responsible for their decisions, and must remain impartial. They do not create law but are limited to judging and enforcing what has been judged.
The Spanish Civil Code stipulates the sources of Spanish law, which include the law, custom, and general principles of law. Custom applies in the absence of applicable law and cannot be contrary to morality or public order. The Civil Code also provides clarity on the characteristics of a contract, outlining the necessary components, such as the consent of the parties, the object of the agreement, and the resulting obligations. Additionally, the Civil Code addresses matters concerning property rights and ownership.
The Spanish judiciary is organised into five jurisdictional orders: civil, criminal, contentious-administrative, social, and military. The courts are structured at different levels, including unipersonal courts controlled by a single judge and High Courts of Justice presided over by panels of judges. The Supreme Court of Spain, or Tribunal Supremo, is the highest judicial body in the country, with appellate jurisdiction over all lower courts.
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The role of judges in Spain is different from that of judges in Common Law countries
Spain is a civil law country, which means that its legal system is based on comprehensive legal codes and laws rooted in Roman law. In contrast, common law systems are based on precedent court rulings, where judges create law through precedent. In civil law systems like Spain's, the source of law creation is the Parliament, and the division between legislative and judicial power is absolute. Judges in civil law systems simply apply the law and do not create it.
The role of judges in Spain, and in civil law countries in general, is therefore very different from that of judges in common law countries. Spanish judges are subject to the Constitution and the rest of the laws, just like other branches of government and citizens. They are independent and are subject only to the law, and they are responsible for their decisions. They must also be objective and impartial. While they have the power to administer justice in the name of the King of Spain, they do not create law but are limited to judging and enforcing what has been judged.
In contrast, judges in common law countries create law through their rulings and can develop legal principles through their interpretation of the law. They play a more active role in shaping the law and are not limited to simply applying existing laws.
Another difference between the role of judges in Spain and common law countries is that Spanish judges supervise criminal investigations, while in common law jurisdictions, prosecutors typically lead criminal investigations. This gives Spanish judges a more hands-on role in the criminal justice process.
Additionally, Spain has a system of justices of the peace, who are local people elected by the town council of the city where they were appointed. These justices of the peace preside over minor criminal and civil cases in their communities. This system is not typically found in common law countries and adds another layer to the administration of justice in Spain.
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The Spanish Constitution guarantees respect for essential principles
The Spanish Constitution is the supreme law of the Kingdom of Spain. It was enacted in 1978, three years after the death of dictator Francisco Franco, marking the country's transition to democracy. The Constitution guarantees respect for essential principles, including:
Impartiality
Judges must remain impartial in cases to guarantee effective judicial trusteeship to all citizens by the Constitution.
Legality
Judges and magistrates are subject to the Constitution and laws, just like other government branches and citizens.
Hierarchy of Legal Provisions
The Constitution guarantees the hierarchy of legal provisions, ensuring that laws are followed and upheld.
Publicity of Legal Statutes
The Constitution ensures the publicity of legal statutes, promoting transparency and accessibility.
Rule of Law
The Constitution states that Spain is a "Social and Democratic State, subject to the rule of law," emphasizing the importance of upholding the rule of law over arbitrary actions by public authorities.
Accountability and Prohibition of Arbitrary Action
The Constitution promotes the accountability of public authorities and prohibits them from engaging in arbitrary actions, protecting citizens' rights and freedoms.
Respect for Fundamental Rights and Freedoms
The Constitution includes provisions for fundamental rights and freedoms, such as the right to education, freedom of teaching, and respect for democratic principles of coexistence. These rights are in accordance with the Universal Declaration of Human Rights and international treaties ratified by Spain.
Social Rights
The Constitution provides legal provisions for social rights, including the right to health protection and the establishment of a public Social Security system to assist citizens in situations of hardship.
Territorial Organization
The Constitution establishes Spain as a unitary state with a decentralized structure, allowing for self-government in municipalities, provinces, and Autonomous Communities.
Economic Principles
The Constitution outlines principles to guide the economy, including subjecting the country's wealth to the general interest, recognizing public initiative, and protecting private property within a market economy.
The Spanish Constitution serves as the foundation for the country's legal system, ensuring respect for essential principles and protecting the rights and freedoms of Spanish citizens.
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The Spanish judiciary is composed of national and territorial courts
The Spanish Judiciary is a professional judiciary whose members are public servants. It consists of national and territorial courts, with judges and magistrates (justices) who have the power to administer justice in the name of the King of Spain. The Spanish legal system is a civil law system based on comprehensive legal codes and laws rooted in Roman law, as opposed to common law, which is based on precedent court rulings.
The Judiciary can be organised into different levels of territorial organisation. The basic unit of the judiciary is the judicial district, which covers one or several municipalities and is served by at least one first-instance and inquiry court. The judiciary can also be organised into five jurisdictional orders: civil, criminal, contentious-administrative, social, and military. These jurisdictional orders are each composed of several different circuits, including unipersonal courts (controlled by one judge) and the rest of the High Courts of Justice (controlled by panels of judges).
The Supreme Court of Spain (Tribunal Supremo) is the highest judicial body in Spain, composed of five chambers with cognisance of all jurisdictional orders. The Audiencia Nacional, based in Madrid, has jurisdiction over the entire nation and is composed of four chambers and three jurisdictions. The High Courts of Justice (Tribunal Superior de Justicia) have authority over a single autonomous community and are the highest jurisdictional body within that community.
The Spanish National Court (SNC) or Audiencia Nacional is located in Madrid and has jurisdiction over the entire country. It is composed of a president who oversees the entire court, presidents of each division, and the judges assigned to those divisions. The SNC's overall president is chosen from among the presidents of the chambers at the Spanish Supreme Court. The SNC has jurisdiction over cases relating to more than one province, serious monetary and drug trafficking cases, and certain serious crimes committed outside the country.
The Spanish Judiciary is governed by the General Council of the Judiciary, which oversees the work of all courts and tribunals and allocates judges and magistrates. The Council is composed of 20 members, including judges, magistrates, lawyers, professors, and other jurists.
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The sources of Spanish law are outlined in Article 1 of the Spanish Civil Code
The Spanish legal system is a civil law system, which means that its laws are based on comprehensive legal codes and laws rooted in Roman law. In contrast, common law systems are based on precedent court rulings. In Civil Law systems like Spain's, the source of law creation is the Parliament, and the division between legislative and judicial power is absolute, meaning judges simply apply the law.
Article 1 of the Spanish Civil Code outlines the sources of Spanish law. These include custom, which can be applied in the absence of applicable law, as long as it is not contrary to morality or public order. The Civil Code also states that custom must be proven by the party applying it.
General principles of law are also outlined in Article 1 as subsidiary criteria, meaning they only apply in the absence of applicable law and custom. Jurisprudence or case law in Spain is also addressed in Article 1, indicating that it complements the legal system with the doctrine established by the Supreme Court when interpreting and applying the law, custom, and general principles of law (Article 1.7 of the Civil Code).
The Spanish judiciary consists of Courts and Tribunals, composed of judges and magistrates (Justices), who have the power to administer justice in the name of the King of Spain. There are five jurisdictional orders in Spain: civil, criminal, contentious-administrative, social, and military. The judiciary can be organized into different levels of territorial organization, including the municipality, district, province, and autonomous community.
Judges in Spain are independent and subject only to the law, and they are responsible for their decisions. They must also remain objective and impartial. While there is a growing tendency to allow judges to "interpret" laws, their role is very different from that of judges in Common Law countries, where judges create law through precedent.
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Frequently asked questions
Spain follows a civil law system.
The Spanish civil law system is based on comprehensive legal codes and laws rooted in Roman law.
The sources of Spanish law are law, custom, and general principles of law. Custom applies in the absence of applicable law and cannot be contrary to morality or public order. General principles of law are subsidiary criteria, applying only when there is no applicable law or custom.
In Spain, judges administer justice in the name of the King. They are independent and impartial, and their role is limited to judging and enforcing what has been judged, unlike in common law systems where judges create law through precedent.
Spain's judiciary is organized into national courts with nationwide jurisdiction and territorial courts that cover geographic regions. At the basic level, there are judicial districts, each covering one or more municipalities, with at least one first-instance and inquiry court. There are five jurisdictional orders: civil, criminal, contentious-administrative, social, and military.
