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Dicey, Morris & Collins: The Conflict of Laws

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The Constitution of Spain: A Contextual Analysis


ISBN13: 9781849460163
Published: May 2013
Publisher: Hart Publishing
Country of Publication: UK
Format: Paperback
Price: £25.99



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This book provides a critical introduction to the principles and institutions that make up the Spanish Constitution, which was enacted in 1978. It first explains the process of transition from Franco's dictatorship to democracy, in order to understand the historical circumstances under which the Constitution was framed.

After offering a theory to justify the authority of the Constitution over ordinary laws, the book proceeds to explain the basic principles of the Spanish political regime, as well as the structure of its complex legal system. Later chapters focus on various institutions, such as the crown, parliament, and the government.

A specific chapter is devoted to the territorial distribution of power between the state, the regions and local government. The last two chapters deal with the constitutional role of courts, and the protection of fundamental rights. By way of conclusion, the book includes some reflections on the challenges that lie ahead and the constitutional reforms that may need to be considered in the future.

Subjects:
European Jurisdictions, Spain
Contents:
1. The Framing of the Spanish Constitution
Introduction A Tragic Precedent: The Second Republic (1931-36)
A Long Dictatorship A Negotiated Transition to Democracy
The Constitutional Spirit: The Politics of Consenso
The Constitution as the Embodiment of Shared Values
The Constitution as the Product of a Bargaining Process
Conclusion
2. An Overview of the Spanish Constitutional System: Basic Principles
Spain as a 'Social and Democratic State Under the Rule of Law'
A Parliamentary Monarchy with Limited Mechanisms of Direct Democracy
The Constitutional Relevance of Political Parties
Quasi-Federalism: The Estado de las Autonomias
Conclusion
3. The Constitution and the Legal System
The Nature of the Constitution as a Legal Norm
The Constitution and Time: Constitutional Amendments
The Constitution and Space: International and Supranational Sources of Law
Conclusion
4. The Crown The Legitimacy of the Monarchy
The King's Symbolic Function
The Countersignature Requirement
The Role of the King in Selecting the Government
The King's Authority to Sanction the Laws
The King's Political Neutrality
The King's Immunity: Regency, Guardianship, Marriage and Succession
Conclusion
5. Parliament
Introduction The Electoral System
The Status of Members of Parliament
Parliament's Regulatory Autonomy: The Role of By-laws or Standing Orders
Parliament's Internal Organization
Parliament's Role in Selecting and Checking the Government
Parliament as a Legislative Body
The Future of the Senate
Conclusion
6. The Government and Public Administration
The Government
The Public Administration
Controlling the Government and the Administration
Conclusion
7. Regional Decentralization: The Estado de las Autonomias
The Birth of the Estado de las Autonomias (State of Autonomies)
General Principles of the Estado de las Autonomias: Unity, Autonomy, Solidarity, Equality
The Constitutional Role of Statutes of Autonomy
The Distribution of Powers between the State and the Autonomous Communities
Cooperation and Conflicts between the State and the Regions
The Financial System of the Regional Governments
The Political System of the Autonomous Communities
The Relationships between State Law and Regional Law
The Debate about Asymmetry
The Secessionist Challenge
Local Government
Conclusion
8. The Constitutional Role of Courts
Jurisdictional Exclusivity and Unity
Impartiality, Independence, Legality and Responsibility
The Democratic Legitimacy of Judicial Decisions
The Government of Judges Prosecutors and the Jury
Why a Constitutional Court?
Composition
Jurisdiction of the Court
The Court's Performance: Tensions with the Political Branches and the Ordinary Judiciary
Conclusion
9. Fundamental Rights
The Structure of the Bill of Rights
Legal Mechanisms for Protecting Rights
Restriction and Suspension of Fundamental Rights
Who is Entitled to Fundamental Rights?
Are Private Individuals Bound by Fundamental Rights?
Fundamental Rights in an Activist State
Conclusion.

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