What Are The Differences Between A Law and A Decree?

The differences between law and decree are subtle. Therefore can be difficult to understand. In the first place, to get to the bottom of both concepts, reference must be made to the definition of law.

In Latin, law is a legal rule issued by the legislator. On the other hand, the decree, a term that comes from the Latin decretum. It is defined as the decision of an authority about a certain matter over which it has jurisdiction.

It is important to note that the nature of the decree varies according to each national legislation. In this case we will refer to this in the Spanish legal system.

The Spanish system is broad and complex. On the one hand, there is a plurality of sources per se, of which laws and regulations are a part. On the other hand, we have a plurality of joint legal systems, which would include state and regional regulations, as well as national and European regulations.

To understand the differences between law and decree, it is essential to understand the functioning of the national legal system, whose base 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 the Kelsen 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 bottom of the pyramid are custom and general principles of law.

In this way, the laws are norms immediately subordinated to the CE. These are approved by the legislative branch in Parliament. From the point of view of the principle of hierarchy, as mentioned above, they would all 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 legal reserve, 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

In the first place, organic laws are those linked to and reserved for certain matters regulated in Article 81 EC. In other words, 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, organic laws are those relating to fundamental rights and public liberties. Also those that approve the Statutes of Autonomy and the general electoral regime and the others provided for in the EC. Its elaboration requires an absolute majority. On the other hand, ordinary laws are approved by the usual procedure and by simple majority. They will be those that regulate matters not reserved by law. 

What Is The Difference Between A Law And An Executive Order?

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

A law is a formal document that sets out the rules and regulations of a particular field, such as criminal law. An executive order is an instruction from a president or other head of state to government officials with the authority to put into effect the provisions of the order. It is often used to bypass Congress or other legislative bodies when it can’t be passed through normal channels.

Both laws and executive orders are important tools for governments in terms of governing their people. They help keep things orderly and protect citizens from abuses by government officials. Laws also serve as a model for how society should operate, setting standards for how individuals should behave. Executive orders can provide specific examples or guidelines for how actions should be taken in certain situations, helping ensure consistency across different departments within government agencies. Laws and executive orders are both essential components of effective governance, but they have different purposes and applications depending on the situation.

Common law

The positive laws are the norms that are included in the legislative codes of the States. Examples of this are civil law, criminal law, labor law, etc. And customary law is the antonym of this positive law.

On the other hand, customary law is not a closed code of written rules, but is the expression of the customs of the citizens of a certain place.

Customary law is the spontaneous expression of law, it is a manifestation of law through recurring actions in a given place. The origin of these norms are the usual social practices of people.

Customary law can also be understood as legal custom, it is the set of social behaviors that are respected and imposed (without having an imperative norm) by social practice.

Characteristics of common law

The essential notes of common law are:

• Normally unwritten right.
• Right that is not created by legislative bodies of the State.
• Right that emanates from the people by their actions.
• Law of slow confirmation in time.
• Does not have a legislator to publish it.
• It is usually imprecise.

Common law requirements

To understand that a social practice or a custom becomes part of this customary law, it needs to meet certain requirements:

• Use by most or most of society of a given place.
• Continuous and uniform use.
• It must be a rational social practice.
• It must be respected as if it were a written norm (emanating from the legislative bodies of the State) in question.

Use of common law

Customs have two great uses:

• Praeter legem: This use is when the custom is used in a subsidiary way to the law. These norms, not being within the catalog of written normative codes and that can be observed by all citizens, have a subsidiary function.

That is to say, in the event that the positive law to which the State has scope cannot be applied, it will resort to this customary law. Since the fact that it is a deeply rooted social practice but is not predisposed can cause legal uncertainty (which is a fundamental principle in a rule of law) to citizens.

• Secundum legem: This use is when the written law is not clear for the interpretation of the specific case and the custom is used to interpret it and thus be able to apply it in the most correct way.

When does it cease to be a legal custom?

Customary law lapses in several cases:

• Due to disuse, it is no longer a repeated and uniform social practice in society. And, consequently, it loses the character of legal custom.
• By imposition of a law that imposes the opposite of this custom. For example, because it is not updated at the time.