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The Constitution, the Law of Laws

Capitol Washington

The Constitution, in the sense that it currently has for us, does not find a true antecedent until that of the United States in 1787. [Photo: LPDS]

Political regime - it can be read in the Aristotle Politics - is the organization of the magistracies in the cities or states; how they are distributed, what is the sovereign element and what is the purpose of the community in each case. The political regime or political form of a State results from its organization, which defines who has authority and how it can be exercised, what is its purpose, what is the situation of citizens in society, etc. Such situations are resolved differently depending on the political organization that the State adopts. This organization is defined by the fundamental political laws, or Constitution.

The constitutional laws, or State Constitution, are, therefore, those that constitute, institute or define the political organization of the State.

Although the term has been applied since ancient times to the field of politics, in reality the Constitution, in the sense that it currently has for us, does not find a true precedent until that of the United States in 1787.

Constitutional laws are those that constitute, found and base the being of the State in its structure, nature and political form.

Every State results from a constituent or organizing process, which founds an order of coexistence and peace. To this end, it organizes social life, solving a series of problems: it establishes who exercises political power and authority, who are the authorities, what purposes they have to fulfill, what rights and duties citizens have, what their action is in the State, how they can intervene in it, what means the State has to enforce the law and to demand justice.

Fundamental Laws of Superior Rank that Limit the Action of Power

The laws that establish this order are usually called Constitutional Laws, except in cases like Sweden or Spain, where they are called Fundamental Laws. It is easy to understand that they have a higher rank than other laws, because they are the basis and source of the entire legal order. In Spain, the Fundamental Laws are studied and, where appropriate, approved by the Cortes, after their elaboration by the government.

Constitutional laws have the political meaning of being organizing laws of the people in the State; integration of the former into a legal and authoritative order. They have the value of reciprocal conditions in the relationship between the State and the people, between the king and the kingdom to use the classical expression. They are limiting laws of the action of power in the realization of the common good on the assumption and basis of the dignity of the person as a fundamental principle of the State itself.

From the legal-political point of view, the notes that can characterize the Constitutions are the following:

A. Open Constitution. When it is the result of a revolutionary and instituting process. It is born from the violent rupture of a previous political situation, and is elaborated throughout a process of successive creation that pursues, not the creation of an artificial order that can be dictated once and for all by a law or code, but as a result of the historical requirement of the expressed process itself.

B. Constitution closed. It is the one that is closed and finished once and for all in a code or law.

C. Rigid and flexible Constitutions. In Constitutional Law, the distinction between rigid and flexible Constitutional laws is established based on the reform procedure. When the Constitutional law can be reformed or modified by an ordinary law, therefore, without a legal distinction of rank between the two, it is said to be flexible. When, on the other hand, a special reform procedure is established, different from the one used by the legislative power in other ordinary laws, the law is said to be rigid.

D. Historically, Constitutional laws are distinguished by their origin in granted, agreed, imposed and foundational.

A Constitution is granted when it is promulgated and granted by the king, by virtue of the authority or legislative power of the king. It is called agreed when it is conceived as a pact or agreement between the king and the people. It is called imposed when its origin is due to an act of the community, which imposes it on the king. They are, therefore, all of them forms that are carried out within the monarchical regime, in the struggle between the king and the people, in the political evolution that starts from the French Revolution. But, in addition, there are Constitutions that are created from the people themselves; it is the people in a specific and extraordinary act, often in a situation of emergency or historical crisis, who in a constituent process founds a new State; In this case, this Constitution has a foundational character.

What about the Spanish Constitution of 1978?

According to our opinion, we would be facing a type of agreed but, beware, not agreed with the people, since the Fundamental laws that make up the Spanish Constitution were agreed -consensus- between political parties. Although there are those who maintain that the so-called Transition and the Constitution, lacking a constituent process, are nothing more than an agreed reform of the Franco regime between its most direct political heirs and the so-called democratic parties, what seems to be clear is that the people, civil society, limited themselves to endorsing the agreed text at the polls.

Regarding its nature, we would be talking about a rigid Constitution, since its reform requires a special procedure, since the projects must be approved by a majority of 3/5 in each of the Chambers (210/350 Congress - 159/235 Senate).

E. The laws are distinguished in material and formal. Material laws are those that, due to their content and nature, are general provisions. They are called formal when they have been prepared by a specific body, by the legislative body or when there is a legal criterion that distinguishes them from other provisions.

Constitutional laws are constitutional in the material sense, if only by their content or matter they can be determined as such. That is, those that refer to the organization and constitution of the State, to the organization and structure of sovereign power. In this sense, all constitutional laws are material laws, since they clearly have a political content.

But constitutional laws are formal if there is a sufficient and precise legal criterion that identifies and distinguishes them from other laws that do not have this constitutional character.

Constitutional Law. It studies political institutions from a legal angle. Its name comes from the practice inaugurated in the United States in 1787 and later in France in 1791, and later generalized, which consists of gathering the rules of rights relative to the essential organs of the State in a solemn text called Constitution. But all the rules of law relating to political institutions are not contained in the Constitution: they are also found in ordinary laws, in government decrees and regulations, in the orders of the ministers and local authorities, in the resolutions of the assemblies, in legal customs or in the "general principles of law". Constitutional Law studies them all, whatever their source is; despite its name, it is not just the law of the Constitution.

Constitutional Law is an important element in the study of political institutions. But it cannot be an exclusive element, as was often the case in France until the middle of the 20th century, since the legal aspect is only part of the political institutions. All institutions, or almost all, even non-political ones, are somewhat in this case. It has been said that an institution is a set of social rules related to the same field or to the same object; Among these rules, some are legal rules established and sanctioned as such by the State, and the others are simple social uses. Thus, we find a mixture of these two categories of rules in most institutions and not only in political institutions.

The Leaders Who Establish the Rules or Who Contribute to Establishing them Can Get Rid of them more easily

The mixture presents special characters in political institutions. In principle, the part of non-legal rules is always very broad. On the other hand, the legal rules are frequently applied much less strictly in the other institutions; the leaders who establish the rules or who contribute to establishing them can get rid of them more easily. In certain states the Constitution is hardly applied, and thus it has been possible to speak in this regard of Constitutions-program. Even when it is applied and it is a true Constitution-law, the application is not as rigorous as that of the Civil Code or the Penal Code. Thus, Constitutional Law only offers an incomplete and false vision of political institutions. An analysis of political institutions without taking into account their political aspects would be less far from reality, especially in States where Constitutional Law is hardly applied. But it would be incomplete, in spite of everything, in the States in which the Constitution is relatively respected. The study of Constitutional Law must always be done in relation to the study of non-legal aspects of political institutions.

On the other hand, legal study and the systematic study of political institutions should not be confused. A systematization can be made on the basis of legal criteria; for example: the classic distinction between the parliamentary regime and the presidential regime. But systematizations can also be established on non-legal bases; For example: political parties.

Above all, the two types of systematization can be combined to define a typology of political regimes that is sufficiently close to the facts.


[Source: Vv.Aa (1978). The Constitution. In Maravillas del Saber. Consultor didáctico (Tome VIII, pp. 36-39). Milan, Italy: Editrice Europea di Cultura]