# Sources of Law and the Legal Order

Law I · Foundations of Law · https://tryals.app/learn/law-i/sources-of-law-and-the-legal-order

## From a Heap of Norms to an Order

A legal system is an **ordenamiento jurídico**. It resolves its own conflicts through strict criteria of membership and ranking.

Article 1 of the Spanish Civil Code defines the sources:

> The sources of the Spanish legal order are **statute, custom and the general principles of law**.

* **Custom** applies only without applicable statute (Art. 1.3 CC). It must respect morality and public order, and requires proof.
* **General principles** apply in default of statute or custom, and inform the legal Order (Art. 1.4 CC).

**Case law is deliberately not on the list.** Under Art. 1.6 CC, jurisprudence merely complements the system. Sources create norms; complements stabilise interpretations.

Under Art. 1.7 CC, courts have a strict duty to decide every case.

### Hierarchy and Competence

**Hierarchy** organises norms by rank (Art. 9.3 Constitution; Art. 1.2 CC):

| Rank | Norm |
|---|---|
| 1 | The Constitution |
| 2 | Treaties |
| 3 | Statutes and equivalent acts |
| 4 | Regulations |

**Competence** governs subject matter, not rank.

* A **ley orgánica** is reserved for specific areas. A **ley ordinaria** governs general matters.
* A **decreto-ley** (Art. 86 CE) requires urgent need. The Congress of Deputies must convalidate it.
* A **decreto legislativo** requires prior delegation from the Cortes.

Under Article 2.1 CC, statutes enter into force **twenty days** after publication unless stated otherwise.

> **Common pitfall:** ranking a *ley orgánica* above a *ley ordinaria*. They share rank 3 and differ only by competence.

## Practice questions

9 of this lesson's 14 practice questions, with answers. The full set is in the app.

### 1. Arrange the stages by which a Spanish statute comes to bind, in order.

**Answer:**

1. The Cortes Generales approve the text
2. The King sanctions and promulgates it
3. It is published in full in the Boletín Oficial del Estado
4. The vacatio legis runs its course
5. The statute is in force and binds

**Why:** Students routinely collapse the last three. Publication is what makes the text knowable, the *vacatio legis* is the interval in which it can be learned, and only then does the norm bind. A statute approved in July and in force in January is neither a paradox nor unusual.

Page: https://tryals.app/practice/law-i/sources-of-law-and-the-legal-order/arrange-the-stages-by-which-a-spanish-statute-comes-to-bind-in-order

### 2. A decreto-ley must be submitted to the Congress of Deputies for convalidation or repeal within thirty days of its promulgation.

**Answer:** True

**Why:** **True.** Article 86 CE allows the Government to legislate provisionally in cases of extraordinary and urgent need, and then requires Congress to debate and vote on convalidation or repeal within thirty days. The instrument is an exception to the ordinary route, and the short deadline is what keeps it one.

Page: https://tryals.app/practice/law-i/sources-of-law-and-the-legal-order/a-decreto-ley-must-be-submitted-to-the-congress-of-deputies-for

### 3. Why is the relation between a ley orgánica and a ley ordinaria described as one of competence rather than of hierarchy?

A. An organic statute ranks above an ordinary one only when resolving direct statutory conflicts
B. An ordinary statute prevails because it is passed through standard parliamentary majorities
C. They occupy the same rank, and what separates them is the subject matter each may regulate
D. Neither statute holds superiority, as their precedence is decided purely by date of enactment

**Answer:** C. They occupy the same rank, and what separates them is the subject matter each may regulate

**Why:** Because they sit on the **same rung**. The organic statute is reserved to particular matters and needs an absolute majority of the Congress; stray outside those matters and the surplus is simply treated as ordinary legislation. If the relation were hierarchical, the surplus would be valid and superior instead of demoted.

Page: https://tryals.app/practice/law-i/sources-of-law-and-the-legal-order/why-is-the-relation-between-a-ley-organica-and-a-ley-ordinaria

### 4. Spanish jurisprudence is classified as a complement to the legal order rather than a source of law. What follows from this distinction when a judge resolves a dispute?

A. Judicial decisions bind inferior courts through formal law creation
B. Precedents override customary norms when statutory rules fall silent
C. Case law clarifies existing rules without creating autonomous norms
D. Judges must refrain from deciding cases unsupported by prior rulings

**Answer:** C. Case law clarifies existing rules without creating autonomous norms

**Why:** Confusing jurisprudence with custom or general principles mistakes judicial guidance for norm creation. Conflating statutory silence with an excuse to dismiss cases ignores Article 1.7 CC, which compels courts to rule despite gaps.

Page: https://tryals.app/practice/law-i/sources-of-law-and-the-legal-order/spanish-jurisprudence-is-classified-as-a-complement-to-the-legal

### 5. Complete the account of the Spanish system of sources.

**Answer:** Article 1.1 of the Civil Code names statute, **custom** and the general principles of law as the sources of the legal order. Case law is not a source; Article 1.6 says it **complements** the order. Article 1.7 forbids a court to refuse to decide, so there is no **non liquet**. A norm made by the Government under a prior delegation from the Cortes is a decreto **legislativo**.

**Why:** The second blank is the one to hold on to. Supreme Court doctrine carries enormous practical weight and is still not a source in the Code's sense: a source creates norms, a complement fixes how existing ones are read. Getting this right is what lets you say precisely why a change of case law is not a change in the law.

Page: https://tryals.app/practice/law-i/sources-of-law-and-the-legal-order/complete-the-account-of-the-spanish-system-of-sources

### 6. In Spain a proved custom applies even where a statute governs the same matter.

**Answer:** False

**Why:** **False.** Article 1.3 CC allows custom to govern only **in the absence of an applicable statute**, and only if it is not contrary to morality or public order and is proved by the party invoking it. Spanish custom is therefore *secundum* or *praeter legem*; a custom against a statute has no legal force.

Page: https://tryals.app/practice/law-i/sources-of-law-and-the-legal-order/in-spain-a-proved-custom-applies-even-where-a-statute-governs-the

### 7. Under Article 2.1 of the Civil Code, how many days after complete publication in the BOE does a statute enter into force, if the statute itself says nothing?

**Answer:** 20

**Why:** **Twenty days.** The rule is a default rather than a fixture, and most statutes displace it, often with entry into force on the day after publication. Its point is that a rule nobody has yet had the chance to learn cannot fairly be a rule anybody is bound by, which is the same idea that makes non-retroactivity a constitutional guarantee.

Page: https://tryals.app/practice/law-i/sources-of-law-and-the-legal-order/under-article-2-1-of-the-civil-code-how-many-days-after-complete

### 8. Arrange these Spanish legal instruments by the year they were enacted.

**Answer:**

1. The Civil Code, 1889
2. The Constitution, 1978
3. The Organic Law of the Judiciary, 1985
4. The Criminal Code, 1995
5. The Civil Procedure Act, 2000

**Why:** The gap between the first and the second is the substantive point. The Civil Code predates the Constitution by nearly ninety years and remains in force, which is why so much of Spanish private law is read through provisions written for a very different constitutional order, and why the constitutional interpretation of old code articles is a standing occupation of the courts.

Page: https://tryals.app/practice/law-i/sources-of-law-and-the-legal-order/arrange-these-spanish-legal-instruments-by-the-year-they-were-enacted

### 9. Sort each norm by the organ that produces it.

**Answer:**

- The Cortes Generales: A ley orgánica, A ley ordinaria
- The Government: A decreto-ley, A royal decree approving a reglamento
- Neither: it arises from social practice: A commercial custom proved by the party invoking it, A local practice on the use of irrigation water

**Why:** The third column is what makes the sorting worth doing. Custom is the one source with no organ behind it, which is why the Code hedges it with conditions the other sources do not carry: it must be proved, must not offend morality or public order, and yields to any applicable statute.

Page: https://tryals.app/practice/law-i/sources-of-law-and-the-legal-order/sort-each-norm-by-the-organ-that-produces-it