¡Descarga Law Production: Statutory Law and Judicial Law in Spanish System y más Ejercicios en PDF de Derecho solo en Docsity! Lesson 7.- Law production A.- Introduction B.- Statutory Law C.- Judicial law A.- Introduction.- In the traditional point of view proper of the Classic liberal democracy born in europe at the end of the 18th century from the basis of legal positivism, parliament was considered the only agent producing law. Legislative power was the only power creating law, representing the general will, whereas executive power was in charge of executing the laws and judicial power to apply them to concrete cases. However, this traditional point of view on normative production has suffered, since then, important changes becoming invalid. First, the rising of the Constitutional State, has meant the existance of a constitution operating as a fully legal text over the rest of legal rules, including statutes. Second, the realization on the impossiblity of legislating every case (loopholes), the existance of antinomies and the open texture of legal rules, has become imposible the consideration of judicial function as a mere logic task, and nowadays it is fully accepted by legal positivist scholars that judicial power is also a producer of legal rules. Third, the enlargement, -in welfare state- of the sphere of intervention of executive power and the public administration, has increased the importance of this power and it has become recognised as a center of production of legal rules, some of them, even with the same rank than Acts of parliament. These changes will be surrounding the explanation of this lesson about law production that will be focused on spanish law distinguishing statutory law and judicial law. B.- Statutory Law In this section, we need to focus on two different centers of normative production: Parliament and government. b. 1.- Parliament. The normative production of Parliament can be distinguished in two different areas: the normative organization of the state and the normative organization of the relations between the stated and the self-governing communities (autonomous communities). b.1.1. Inside the normative organization of the state we can distinguish 3 different types of statutes/acts/laws: Organic Acts, ordinary acts, and Acts of basic principles. * Organic Acts: They are regulated in article 81 S. C. these acts differ from Organic acts according to the matter that need to be regulated by this type of legal rule. Thus, according to article 81.1. “Organic acts are those relating to the implementation of fundamental rights and public liberties, those approving the Statutes of Autonomy and the general electoral system and other laws provided for in the Constitution”. But Organic Acts do not differ from Ordinary acts only regarding the matter that have to be regulated by them. According to article 81.2. they also differ from ordinary acts according to the type of majority required to pass an organic Act. The organic Act requires an overall majority in congress (half and one of the seats in congress=176). * Ordinary Acts: All matters not reserved to organic act will be regulated through an ordinary act. This type of law requires only a simple majority (half and one of the congressmen seated in congress at the moment of the voting). * Acts of basic principles: Our Constitution bestows in executive power (Government) the competence to produce delegated legislation bearing the title of “legislative decrees” (art. 85 S. C). However, as we have seen, there is a traditional distrust on executive power (traditionally with no legislating function). Thus, this delegated legislation (legislative decrees), despite having the same force than acts of parliaments, are controlled by parliament needing previously the passing by parliament of an Act of basic principles that becomes somehow the authorization given by parliament to executive power for the production of a legislative decree, fulfilling certain requirements: The act of basic principles cannot affect to matters reserved to organic Act (art. 82.1. S.C); The legislative delegation must be expressly granted to the government for a concrete matter and with a fixed time limit for its exercise. The delegation shall expire when the government has made use of it through the publication of the corresponding regulation; (art. 82.3); It may not be construed as having been granted implicitly or for an indeterminate period. Nor shall sub-delation to authorities other than the government itself be authorized (art. 82.3); Acts of basic principles shall define precisely the purpose and scope of legislative delegation, as well as the principles
