From the State That Makes Law to the State Bound By It
The modern state produces law. This alone creates a state with law, not a state of law. An absolute monarch makes rules without being bound by them. A true state of law subjects public power to its own norms.
Elías Díaz (Estado de Derecho y sociedad democrática, 1966) set four strict requirements:
- Rule of statute: law expresses the general will, not arbitrary decree.
- Separation of powers: the organ making a norm cannot be the one applying it.
- Legality of the administration: public acts remain subject to legal review.
- Fundamental rights and liberties: liberties are declared and effectively guaranteed.
In 1966, under Franco's dictatorship, Díaz argued that the first three without the fourth amount to mere administrative order.
Legality and Legitimacy
These two concepts must not be confused:
- Legality means conformity with existing positive norms. Article 9.1 CE subjects citizens and authorities to the Constitution and legal order. Article 9.3 guarantees legality, hierarchy, publicity, non-retroactivity, legal certainty, and the ban on arbitrariness.
- Legitimacy means the public acceptance of authority as rightful.
The Spanish Formula
Article 1.1 CE defines Spain as a social and democratic state of law. The Spanish Constitution establishes three distinct pillars:
| Adjective | Requirement | Constitutional Anchors |
|---|---|---|
| Of law | Public power is bound and reviewable | Article 9.1, Article 9.3, 103, 106 |
| Social | Public power promotes material welfare | 9.2, 41, Chapter III |
| Democratic | Power derives from popular participation | 1.2, 23 |
The social state contains specific legal limits. Under Article 53.3 CE, social and economic principles inform legislation and judicial practice. These principles can only be claimed in court under implementing statutes.
Constitutional Legality
When a rigid constitution binds parliament, legality shifts from statutory compliance to constitutional conformity. Luigi Ferrajoli terms this the constitutional state of law. Validity requires formal enactment and substantive consistency with fundamental rights.
Common pitfall: Treating "state of law" as a vague compliment. It is a precise technical standard, as Elías Díaz defined it.