What are the differences between a law and a decree?

The differences between law and decree are subtle and, therefore, can be complicated to understand. First of all, to get to the bottom of both concepts, we must refer to the definition of law.

In latin, lex It is a legal norm dictated by the legislator. On the other hand, the decree, a term that comes from Latin decretumis defined as the decision of an authority about a certain matter over which it has jurisdiction.

It is important to keep in mind that the nature of the decree varies according to each national legislation. In this case we will make reference to the present in the Spanish legal system.

The Spanish system is broad and complex. On one side, There is a plurality of sources in itself, of which laws and regulations are part. On the other hand, we have a plurality of joint legal systems, of which state and regional regulations, as well as national and European regulations, would form part.

To understand the differences between law and decree it is essential understand the functioning of the national legal system, whose basis is made up of the sources of law. That is, understand where the law comes from.

The national legal system: the laws

In law, one of the first concepts taught is Kelsen’s pyramid, which establishes a first order of rules based on the principle of hierarchy.

Thus, the Spanish Constitution (CE) is positioned as the supreme norm, followed by the laws. At the end of the pyramid are custom and general principles of law.

Thus, The laws are norms immediately subordinated to the EC. These are approved by the legislative power in Parliament. From the point of view of the principle of hierarchy, as mentioned above, all would be worth the same.

However, in Spain, in addition to the principle of hierarchy, There is also the principle of competition. In this sense, reference should be made to the reservation of law, which also marks the difference between organic law and ordinary law.

It is important to be clear that both are at the same level in terms of the principle of hierarchy; they are worth the same. They differ because they deal with different subjects, they have different competencies.

Classification of laws

First of all, organic laws are those linked and reserved for certain matters regulated in article 81 EC. That is, these are specific issues that can only be regulated through organic law. It is worth mentioning that they are always the responsibility of the State.

Thus, they are organic laws those relating to fundamental rights and public freedoms. Also those that approve the Statutes of Autonomy and the general electoral regime and the others provided for in the EC. Its preparation requires an absolute majority. On the other hand, ordinary laws are approved by the usual procedure and by a simple majority. They will be those that regulate matters not reserved by law.

Government regulations with the force of law: decree law and legislative decree

First of all, reference should be made to the regulations. This is, according to article 97 CE, a power attributed to the State Government. That is to say, it is a power recognized by the Government and its members to dictate legal regulations. The regulation cannot contradict the law. If we look again at Kelsen’s pyramid, The regulations would go below the laws and the Constitution.

However, there are some certain cases in which the government regulation acquires the status of law. These are the case of the legislative decree and that of the decree law. That is, the decree law and the organic law have the same hierarchical rank.

Differences between the decree law and the legislative decree

The legislative decree, regulated in article 85 CE, is a legislative delegation. That is to say, The legislative power, previously, had to delegate its power to the Government.

This allows two variants. Firstly, in reference to the articulated texts, that is, articulate a basic law approved by Parliament. And the recast texts; case in which the Government can recast several regulations with the force of law into a single regulation.

On the other hand, the decree law, regulated in article 86 CE, is not a case of delegated legislation, but rather makes it possible for the Government to enter the sphere of competence of the Cortes. That is, it could approve or modify the rules of the Cortes.

Is about an exception from the ordinary procedure to the participation of minorities. Therefore, these cases, unlike laws, require the existence of a situation of extraordinary and urgent need that justifies the intervention of the Government.

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