# The State, Legality and Legitimacy

Law I · Foundations of Law · https://tryals.app/learn/law-i/the-state-legality-and-legitimacy

## 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.

## Practice questions

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

### 1. Why do the guiding principles of social and economic policy in the Spanish Constitution have a weaker legal force than the fundamental rights, even though both appear in the same text?

A. Article 53.3 makes them binding on lawmakers yet actionable in court only via enabling acts
B. They act purely as programmatic political advice to government, lacking any legal force at all
C. They bind only devolved autonomous regions in their remit, not central state institutions
D. Added via later constitutional reform, they remain subject to ordinary parliamentary repeal

**Answer:** A. Article 53.3 makes them binding on lawmakers yet actionable in court only via enabling acts

**Why:** Under Art. 53.3 CE, guiding principles are not non-binding, provisional, or limited to autonomous communities. They inform all legislation and judicial practice, but individuals cannot invoke them directly without an implementing statute.

Page: https://tryals.app/practice/law-i/the-state-legality-and-legitimacy/why-do-the-guiding-principles-of-social-and-economic-policy-in-the

### 2. Which are requirements of the Estado de Derecho on the classic Spanish definition?

A. Statute as the expression of the general will rather than of the ruler's will
B. Separation of the organ that makes norms from the organ that applies them
C. Administrative action subject to legality and to review
D. A written constitution containing an explicit list of guiding economic principles

**Answer:** A. Statute as the expression of the general will rather than of the ruler's will; B. Separation of the organ that makes norms from the organ that applies them; C. Administrative action subject to legality and to review

**Why:** The fourth entry describes a drafting choice in the Spanish constitutional text, not a condition of the concept. The missing requirement is **fundamental rights, effectively guaranteed**: the one Elías Díaz insisted on in 1966 precisely because a regime can satisfy the first three and remain a dictatorship with tidy paperwork.

Page: https://tryals.app/practice/law-i/the-state-legality-and-legitimacy/which-are-requirements-of-the-estado-de-derecho-on-the-classic

### 3. The transition from a state with law to a state of law is not merely a quantitative increase in statutes. What fundamental shift distinguishes the two, and why does this prevent an absolute sovereign from presiding over a state of law?

A. Administrative actions become subject to broad executive review
B. The state relies on written statutes rather than verbal commands
C. The legal framework derives its authority from public acceptance
D. Public authority is substantively bound by its own legal norms

**Answer:** D. Public authority is substantively bound by its own legal norms

**Why:** Statutory proliferation or administrative structures do not make a state of law; legality requires rulers to be constrained by valid norms rather than standing above them. Popular legitimacy and written forms are neighbouring concepts, but neither suffices to bind sovereign power.

Page: https://tryals.app/practice/law-i/the-state-legality-and-legitimacy/the-transition-from-a-state-with-law-to-a-state-of-law-is-not-merely

### 4. Complete the Spanish constitutional formula.

**Answer:** Article 1.1 declares Spain a social and **democratic** state of law. Article 9.1 subjects citizens and public powers alike to the Constitution and the rest of the legal **order**. Article 9.3 guarantees, among other things, the **non-retroactivity** of unfavourable or rights-restricting provisions. Conformity with the norms in force is **legality**, which is a different property from acceptance of authority as rightful.

**Why:** The last two entries in the bank are the pair the whole lesson turns on. **Legality** is checked by reading the norms; **legitimacy** is a fact about what people accept. Article 9.1 can guarantee the first for everyone and say nothing whatever about the second.

Page: https://tryals.app/practice/law-i/the-state-legality-and-legitimacy/complete-the-spanish-constitutional-formula

### 5. How many requirements does the classic Spanish definition of the Estado de Derecho set out?

**Answer:** 4

**Why:** **Four**: rule of statute, separation of powers, legality of the administration, and fundamental rights effectively guaranteed. The count matters because of what happens at three. A regime with the first three and not the fourth is orderly, reviewable and not a state of law, which was exactly the argument being made in Spain in 1966.

Page: https://tryals.app/practice/law-i/the-state-legality-and-legitimacy/how-many-requirements-does-the-classic-spanish-definition-of-the

### 6. Sort each constitutional provision by the adjective in "social and democratic state of law" that it serves.

**Answer:**

- State of law: Rule of legal order, Judicial review
- Social state: Promoting equality, Social security
- Democratic state: Public participation, Popular sovereignty

**Why:** The middle column is what distinguishes the modern formula from the nineteenth-century one. A liberal state of law is satisfied by abstention, do not act without a statute, do not act arbitrarily. The social clause imposes duties to act, which is why its enforcement is so much harder to design.

Page: https://tryals.app/practice/law-i/the-state-legality-and-legitimacy/sort-each-constitutional-provision-by-the-adjective-in-social-and

### 7. Arrange the steps of the proportionality test in the order a constitutional court applies them.

**Answer:**

1. Establish that the measure pursues a constitutionally legitimate aim
2. Ask whether the measure is suitable for achieving that aim
3. Ask whether a less restrictive measure would achieve it equally well
4. Weigh the benefit obtained against the sacrifice imposed on the right

**Why:** The order is not a formality. A measure that fails at step two is unconstitutional without any weighing at all, which is why courts that jump straight to the balancing stage are criticised for turning a structured test into an unstructured intuition. Only what survives suitability and necessity gets weighed.

Page: https://tryals.app/practice/law-i/the-state-legality-and-legitimacy/arrange-the-steps-of-the-proportionality-test-in-the-order-a

### 8. Match each requirement of the Estado de Derecho to what it constrains.

**Answer:**

- Rule of statute → The content of public power: it must act through general norms
- Separation of powers → The organisation of public power: making and applying are kept apart
- Legality of the administration → The everyday action of officials, and its reviewability
- Guaranteed fundamental rights → The limits of what any majority may decide

**Why:** The fourth is the one that changes the character of the others. Without it, the first three constrain *how* power is exercised and leave its reach untouched; with it, there are decisions no correctly constituted majority may make, which is the step from the state of law to the constitutional state of law.

Page: https://tryals.app/practice/law-i/the-state-legality-and-legitimacy/match-each-requirement-of-the-estado-de-derecho-to-what-it-constrains

### 9. Arrange these forms of state in the order in which they historically appear.

**Answer:**

1. Absolute monarchy: the ruler makes law and is not bound by it
2. Liberal state of law: public power is bound by statute and rights are declared
3. Social state of law: public power must also create material conditions
4. Constitutional state of law: statutes themselves are reviewed against entrenched rights

**Why:** Each step subjects a new actor to law. First the ruler, then the administration, then the state acquires positive duties, then finally the legislature itself is put under review. Nothing in the sequence was inevitable and none of it is irreversible, which is why the fourth stage is defended rather than assumed.

Page: https://tryals.app/practice/law-i/the-state-legality-and-legitimacy/arrange-these-forms-of-state-in-the-order-in-which-they-historically

### 10. In what year was the Spanish Constitution approved by referendum?

**Answer:** 1978 (within ±1)

**Why:** **1978**, ratified in a referendum on 6 December and in force at the end of that month. The date is worth fixing because so much of the Spanish legal order predates it, the Civil Code by nearly ninety years, and the constitutional reading of pre-constitutional statutes is a permanent occupation of the courts rather than a transitional problem.

Page: https://tryals.app/practice/law-i/the-state-legality-and-legitimacy/in-what-year-was-the-spanish-constitution-approved-by-referendum