What Are The Differences Between A Law And A Decree?

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

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

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

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

To understand the differences between law and decree, it is essential to understand the functioning of the national legal system, the basis of which 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 norms 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.

In this way, the laws are rules immediately subordinate to the EC. These are approved by the legislative branch in Parliament. From the point of view of the hierarchy principle, 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 reserve of law, which also makes 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 hierarchy principle; they are worth the same. They differ because they deal with different subjects, they have different competences.

Classification of laws

In the first place, organic laws are those linked and reserved to certain matters regulated in article 81 CE. 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 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 force of law: decree law and legislative decree

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

However, there are certain cases in which the government regulation acquires the status of law. These are the case of the legislative decree and 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. In other words, the legislative power has previously had to delegate its power to the Government.

This supports two variants. In the first place, in reference to the articulated texts, that is, to articulate a basic law approved by Parliament. And the consolidated texts; assumption in which the Government can refound several norms with force of law in a single norm.

On the other hand, the decree law, regulated in article 86 CE, is not a supposition of delegated legislation, but rather enables the Government to enter the jurisdiction of the Courts. That is, it could approve or modify rules of the Courts.

This is an exception from the ordinary procedure to the participation of minorities. For this reason, these cases, unlike the laws, require the existence of a situation of extraordinary and urgent need that justifies the intervention of the Government.