Constitutional emergency law in Spain: towards a new taxonomy

Abstract

Summary: 1. Introduction: constitutional normality. 2. Constitutional abnormality. 2.1. The various possibilities in the face of extraordinary situations. 2.1.1. The non-constitutionalization of extraordinary measures for State protection. 2.1.2. The constitutional regulation of the concentration of powers. 2.1.3. The detailed constitutionalization of one or more exceptional situations. 2.1.4. The parallel activity of the ordinary legislator. 2.2. The Spanish doctrine and its conception of the state of exception. 2.3. An alternative proposal: constitucional emergency law. 2.3.1. Material perspective: affecting the basic elements of the rule of law as a requirement for the outbreak of constitutional emergency. 2.3.2. Taxonomy: regulated constitutional emergency versus non-regulated constitutional emergency and how the law subsists in both cases. 2.4. Constitutional emergency law in practice. 2.4.1. Regulated constitutional emergency: beyond Article 116 SC. 2.4.2. Non-regulated constitutional emergency: 23-F as an example. 3. Conclusions. BIBLIOGRAPHY. Summary: constitutional normality consists of the regular and general application of a series of pre-established legal rules, with the objective of achieving the peaceful coexistence of citizens. However, there are extraordinary danger situations in which some ordinary rules may not be enforced, in order to restore political-constitutional normality. Although it is impossible to anticipate all the anomalous circumstances likely to occur, it is in the interests of legal security that at least the most common threats should be foreseen. This is what the majority of Spanish doctrine agrees to call a state of exception or exception right, understood in a broad sense. This work rejects the latter terminological conception, and this under a new taxonomic proposal applicable to the field of constitutional abnormality. On the basis of the differentiation between situations of regulated and non-regulated constitutional emergency, we defend the true legal exception is manifested when, in the absence of applicable regulation in case of a specific threat, the state reaction finds no other limits than the respect for the principle of proportionality in the defense of democratic legal values. It is the latter, in fact, which makes it impossible to confirm the total suspension of the Law in the face of a non-regulated exceptional circumstance, all these legal premises belonging to what we understand to be constitutional emergency law.

Keywords

• emergencia constitucional
• crisis constitucional
• estado de excepción
• derecho de excepción
• defensa del estado
• democracia militante