Vol. 10 No. 2 (February 2000) pp. 123-126.
THE SPANISH LEGAL TRADITION: AN INTRODUCTION TO THE SPANISH LAW AND LEGAL SYSTEM by Charlotte Villiers.
Brookfield, VT: Ashgate Publishing Co., 1999. 164 pp. Cloth $78.95.
Reviewed by Caryl Lynn Segal, Criminology and Criminal Justice Program, University of Texas at Arlington.
Professor Charlotte Villiers sets out to provide legal scholars with information about the Spanish legal system.
She uses the Spanish Constitution of 1978 as her focal point. The book is divided into 12 short chapters, including
the introduction, and it covers the institutions within the Constitution, the sources of law, constitutional rights,
public administration and administrative law, autonomous communities, criminal law, private law, procedural law,
Spain and the European Union, and a three-page conclusion. Villiers states that her objective is to provide "comparative
lawyers" with an introduction to Spanish law. Unfortunately no comparative
references are provided until the final chapter that states the obvious: unlike the United Kingdom, Spain has a
written constitution.
The first two chapters of the book are historically rich but often hard to follow without a fundamental background
in Spanish history. For example, Villiers provides the names of the seven parliamentary groups represented at
the Constitutional Commission that established the 1978 Constitution. However, she gives the reader no information
about these groups beyond this. To put this difficulty into perspective, one of the political groups, Union de
Centro Democratico (UCD) held 106 of the 207 seats in the Congress of Deputies that provided a clear majority.
UCD held three of the seven seats on the Constitutional Commission. The Socialist party, the Communist party,
a Trotskyist movement, and another political group whose name provides no indication of its political leanings
held the other four seats. Nor is there any explanation of why the Trotskyist movement held a seat when it was
not a listed party in the discussion of the general election parties.
There is a very informative explanation of the use of consensus as it applied to Spanish politics during the 1978
Constitution's evolution. Villiers explains that not only did the majority have to agree but also all the groups
who would be working under the constitution had to find the document acceptable. Although Villiers provides no
examples or explanations of how it was accomplished, this formidable challenge was somehow overcome.
The section dealing with institutions within the Constitution begins by detailing the duties of the king. The
final sentence of this discussion states: "In conclusion, the role of the monarchy is relatively weak in theory
but in practice has been shown to be important and strong." Unfortunately Villiers doesn't provide much in
the way of examples to explain what she means. The reader sees little of strength related to the constitutional
powers beyond the traditional role of head of state in international relations
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and the king's refusal to recognize a military coup.
The discussion of the parliamentary chambers also leaves many unanswered questions. The duties of the lower house
are clearly delineated but not that of the upper chamber that is supposed to have been established to protect the
autonomy of nationalities and regions. There is no explanation of how this duty is carried out. Left unexplained
is what happens when a region's autonomy is threatened or if there is any type of veto power given to the upper
chamber in this regard. Veto power of the lower house is mentioned, which adds to the difficulty of understanding
the role of the senate, upper house. Once again the omission of any examples weakens the information that is provided.
Additionally, terms are used without explanation as in the following statement: "Only the congress may pronounce
the approval of decree-laws (Decretos-leyes)." No indication is given of what decree-laws are or by whom they
are promulgated.
The Spanish judicial branch is established in a manner different from ours and from many others. There are in
practical effect two courts of last resort: The Supreme Court and the Constitutional Court. The latter's jurisdiction
is primarily involved with constitutional questions. This small section is carefully crafted and enables the reader
to follow the court hierarchy easily.
The opening of the chapter on sources of law makes a statement that would be confusing to American students: "Spain
follows the continental tradition by which written laws take priority, unlike the situation in the common law systems
whereby the case law and precedent are an important part of the law." In the American system that qualifies
as a common law system, written law in the form of statutes, ordinances, administrative regulations, etc., along
with the constitution override case law. Thus, if the book is to be used in an American setting, differences between
the common law systems in the United Kingdom and the United States would need to be discussed at the outset.
The sections titled "The Ley and Classes of Laws" are very difficult to understand. This is probably
one of the most confusing parts of Villiers' book. In discussing international treaties, for example, we learn
that certain treaties must be given prior authorization by both houses of the legislature. The executive may sign
others and needs to only inform the parliament upon their ratification. Unfortunately readers are provided with
no clues to explain which treaties fall into which categories. Part of the problem encountered in this chapter
can be traced to the Spanish terminology. Although the author attempts to provide a short definition of the various
terms, the lack of clear examples makes the definitions difficult to follow.
In contrast, the chapter on constitutional rights is superbly written and easy to follow and understand. It
is one of Villiers' finest chapters in terms of both organization and clarity. American readers will recognize
the similarity between rights granted in the Bill of Rights and the various articles of the Spanish Constitution
of 1978. Interestingly Article 15, which establishes a right to life, abolishes the death penalty. Article 17
explicitly states that one can only be detained for 72 hours prior to being brought before a court. Of special
interest to this reviewer, a teacher of comparative criminal justice systems, were the provisions of Article 25
that
establish how imprisonment as a punishment should be
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directed toward re-education and rehabilitation and should not include forced labor. The section also provides
that prisoners have a right to be paid for their work.
"Article 24: Right to Obtain Effective Protection by the Courts and Right of Access to the Courts," contains
many of the rights found in the Fifth and Sixth Amendments to the United States Constitution. These are considered
fundamental rights, and they include the right to trial, right to a defense and the assistance of an attorney,
right to be informed of the charges, right to public process, right not to testify against oneself, and the right
to a presumption of innocence. Also included is the provision against ex post facto charges. Other articles provide
for habeas corpus, freedom of religion, freedom of expression, along with freedom of knowledge
and a right to true information.
The Spanish constitution provides a right to education with the addition of the fact that parents may receive for
their children an education that corresponds to the parents' religious and moral convictions. Although the United
States Supreme Court struggles with the question of the constitutionality of vouchers for church-sponsored schools,
in Spain this is considered a fundamental right. The same Article 27 also recognizes the autonomy of universities.
The Spanish constitution also includes what are referred to as constitutional rights, not to be confused with the
fundamental rights listed in Articles 15-29. This small section needed an additional explanation of how the courts
treat Articles 30-38 in contrast to Articles 15-29.
Political scientists will undoubtedly find the information in Chapter 6: Public Administration and Administrative
Law quite informative. Professor Villiers has done an excellent job in this section that is succinctly written
but with exceptional clarity.
Those who teach comparative systems will find the chapter on criminal law an excellent resource. There is mention
of the fact that the day fines concept, as opposed to crimes based on the offense, was adopted from the Scandinavian
system. It would have been helpful for those not versed in day fines and how they operate to have had some type
of explanation. The chapter on procedural criminal law was especially disappointing. The subsection titled "The
Law of Criminal Procedure" consists of 10 lines. This section cried out for expansion. We learn that the
criminal trial has two parts: first the inquisitorial process and then the oral hearing which is
accusatorial and public. But Professor Villiers gives the reader no details whatsoever.
Five pages later another subtitle, "The Criminal Process," appears. The opening sentence only serves
to muddle the picture even more: "This process is an accusatory process and may be initiated by the fiscal
ministry, a private prosecutor or the public prosecutor." Villiers gives no explanation of the difference
between the private and public prosecutor or of the offenses that would be called forth by these three separate
individuals or organizations.
Once again her subsection on the procedural process involving administrative law is well crafted. Administrative
law seems to be an area that brings out her best.
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At long last on page 134 Villiers goes into detail about the trial process. It is hard to comprehend the organization
of this book in the area of the criminal law and process. The information that would have fit in earlier and probably
made the criminal process easy to be understood should not, in my opinion, have been separated from the description
of the trial itself. Villiers mentions that there is no single applicable trial model. She could have fleshed
this section out by reference to differences between criminal and civil trials.
Her penultimate chapter focuses on Spain and the European Union and adjustments in Spanish law that had to be made
to be in compliance with Union rules. This is quite informative and might be especially useful in political science
classes that cover the European Union. However, overall I found that the negative aspects of the book, detailed
above, overshadowed its benefit.
Copyright 2000 by the author.