Luis Mº Cazorla Prieto || “Since October 2021, decree-laws account for 70% of legislative activity. Publicity, transparency, the possibility of integrating interests, and the existence of mechanisms for technical improvement that characterise a properly processed bill almost completely disappear, and everything is reduced to a debate in the full Chamber... Another channel of the accelerated deterioration of the legislative function has been the inappropriate and abusive use of legislative proposals... Or the presentation of amendments to legislative proposals even creating taxes... mechanisms for a significant part of the legislative function to fall even more into the hands of the Government.”
Text: Luis Mº Cazorla Prieto (President of the Royal Academy of Jurisprudence and Legislation of Spain. President of the Institute of Spain. Councillor of State.) On 5 November 2025 at the Royal Academy of Jurisprudence and Legislation of Granada.
The Rule of Law, a genuine achievement of contemporary political-social organisation, is not solely based on a legal construction whose immovable foundations are the realm of the principle of constitutional and ordinary legality, the enshrinement of fundamental rights, and among the most prominent, the right to legal certainty, and the organisation of the three constitutive powers of the State grounded in separation and mutual respect. The Rule of Law is all this expressed in very generic and all-encompassing terms, but it is also something more, something very resistant to being translated into legal terms; that is, something that needs to be nourished by other factors as diffuse as they are important.
The health of the Rule of Law requires that political and social actors breathe a notable appreciation for the Law and its procedures as a means of channelling and resolving individual and collective conflicts.
I say this clearly: I come before you with enormous concern, that of the rampant contempt for the Law that is taking shape today in certain sectors of our society and our State.
I will now review several of the misguided opinions on which this lamentable phenomenon is based and insert my opinion on them. Jurists tend to be conservative and resistant to change, when what truly repulses the legal mentality is not progress but chaos and disorder, especially in the way of achieving objectives, however innovative they may be. The Law, some argue, is always an obstacle, an impediment in the way of achieving advanced political goals, so it is necessary to relegate or reduce to its minimal expression the demands of a legal nature, when, on the contrary, respect for the Law is the best guarantee of the successful outcome of what is intended, regardless of its nature. In certain circles, it is posited that it is not essential to take into account or exaggerate foreseeable and even announced negative effects of a defective elaboration or execution of the legal norm, when, conversely, such conduct has created very opposite situations to what was desired. The Law, others add, is nothing more than a scaffolding or a formal appearance that harbours neither values nor is an effective instrument for achieving them, when this is today very much surpassed by the principled and axiological understanding imposed by the Constitution of 1978. Finally, against the democratically expressed political will that knows no limits, some argue that the Law entails undesirable restrictions, when, quite the contrary, it is the channel for achieving lasting socio-economic advances.
As a result of all this and other factors that I cannot delve into, the waves of contempt for the Law are reaching the shore of legal certainty with deplorable consequences, driven by the swell of populism in its legal aspect. As Academic Darío Villanueva writes in this regard: “The rise of populist options, based on emotional impulses and passions that are difficult to control, is spreading.”
The health of the Rule of Law, in addition to what I have just outlined, requires another element that, by its nature and content, cannot be reflected in written rules. I refer to the need for the application of any legal norm, especially if it is of political significance, to be imbued with a sense of limits. This means that in any democratic Rule of Law, there are limits that, although they may not have been positivised and perhaps, even if one wanted to, could not be, must be respected; they must not be transgressed with the aim of preventing the cracks in the legal-organisational formula we are concerned with from fissuring.
Here is a new concern raised by our current Rule of Law: the sense of unwritten and para-legal limits that are essential to lubricate the functioning of its scaffolding is being lost. Indeed, we are witnessing with undesirable frequency that when we think that institutions, categories, or legal concepts have reached the limit of their elasticity, this limit cracks and opens the door for any limit, however flexible, to become weak against political, economic, or social pressure and succumb to it.
The weakening of the limits that, although unwritten, must nourish the life of the Rule of Law, is the result of various levers both of an individual and collective nature. I will now limit myself to bringing up one of the most powerful, if not the most powerful.
“The orders coming from the ruling political party circulate damagingly through the veins that irrigate the musculature of the institutions and mechanisms proper to the Rule of Law, greatly disturbing their functioning and blurring the written and unwritten limits.”
The functioning of our party system, in my opinion, has unfortunately evolved into something that begins to recall in certain aspects the dictatorship of the party. The prescriptions, the orders to be clearer, coming from the ruling political party circulate damagingly through the veins that irrigate the musculature of the institutions and mechanisms proper to the Rule of Law, greatly disturbing their functioning and blurring the written and unwritten limits to which such mechanisms must adhere.
This powerful lever generating the current widespread concern among jurists regarding the current situation of our Rule of Law is greatly favoured by some characteristics attributable to a significant part of our political class. The generalisation of the so-called political career, whereby those who pursue it do not know other professional horizons and can only sustain themselves economically and professionally through the performance of political positions, greatly facilitates the tendency to think that, although the appearances of the purely formal structure are to be maintained, the will of the political party must prevail over certain written legal limits and other extra-legal or para-legal ones.
1
The Constitution as a Cause of Concern
The Constitution of 1978 was the result of fruitful consensuses aimed at finding the minimum common ground of all political forces and the deputies and senators integrated into them who approved it. This approach to its elaboration brought with it indeterminacies that its subsequent development, customary application, and interpretative jurisprudence were meant to fill.
This methodological approach and the written manifestation it reached led to a very open and imprecise legal field in many cases within which the different political options could develop their programme. A frozen and petrified understanding of the current constitutional text is maximally objectionable. The formidable potential of constitutional values and principles, the open wording of many norms, and the relatively open configuration of capital institutions of the Rule of Law allow for an evolutionary understanding that is in tune with a rapidly changing social reality.
However, the open design of the constitutional text of 1978 was counterposed by certain written and unwritten limits, considered insurmountable at the time of its elaboration and in the early stages of its development.
Let us start with the written ones. The formidable potential of constitutional values and principles encountered limits constitutionally imposed. Indeed, our Constitution is not a chewing gum Constitution (allow me this expression so improper for this podium). The evolutionary nature I refer to can reach a point where it collides with what the constitutional speaker Miguel Herrero de Miñón calls “main Constitution” or substantial core that cannot be altered without substantially distorting it to the point of making it formally the same and materially another. As Eric Vuillard points out from another perspective in his unclassifiable book The Order of the Day: “Constitutional Law exists, and it is not for termites or little mice; it is for chancellors, for true statesmen, because a constitutional norm [...] closes the way as powerfully as a tree trunk or a police cordon!” or, I clarify, it should close it.
I now turn to the unwritten limits. The development and implementation of the Constitution were based on the existence of great basic agreements that in the form of unwritten rules lubricated the functioning of the institutions it housed, among other things.
Over the years, not only have the consensuses between the two political sectors, the centre-right and the centre-left, that consolidated the initial constitutional consensus been loudly broken, but different political forces have also emerged that want the Constitution to wobble and contribute decisively to blurring its limits, however diffuse they may be.
“PSC and ERC signed an agreement in which they established the basic lines for a singular financing for Catalonia. An agreement that completely ignored aspects, both of fundamental rights and of institutional architecture, of the Constitution that must be observed. And which is reproduced in the agreement between Government-Generalitat of 14 June 2025.”
All that I have just outlined brings with it that, as a constitutional reform process is politically unthinkable today due to the prevailing frontism and its inherent rigidity, we are witnessing one of the greatest crises that overwhelm our Rule of Law. Thus, in certain areas, we are witnessing true constitutional mutations or, even, in the coarsest manner, the simple sidelining of what, however flexible it may be, the Constitution imposes.
Although there are more, I will only refer to two examples of great importance.
In July 2024, the Socialist Party of Catalonia and Esquerra Republicana de Catalunya signed a document in which, among other things, they established the basic lines for a singular financing for Catalonia. This agreement, in many respects that I cannot delve into to avoid boring you, completely ignored aspects, both of fundamental rights and of institutional architecture, of the Constitution that must be observed, however flexibly it may want to be interpreted. Although in a more dulcified manner and with fewer constitutionally piercing edges, this approach is reproduced in the agreement of the bilateral Commission Government-Generalitat of Catalonia of 14 July 2025.
Without reaching the extreme of the aforementioned case, the ruling of the Constitutional Court 137/2025, of 26 June, which resolves a constitutional complaint presented against Organic Law 1/2024, of 10 June, on amnesty for the political and social normalisation of Catalonia, without prejudice to other considerations and focusing exclusively on the thread of the discourse, exudes, in my opinion, a certain whiff of anxiety that what is not prohibited by the Constitution is permitted and that the force of what is approved by Parliament is markedly powerful against the mandates of the Constitution.
2
The Judicialisation of Politics and the Politicisation of the Judiciary as a Cause for Concern
As pointed out earlier, the social and democratic Rule of Law to which the current Constitution adheres has as one of its fundamental foundations the separation of powers, that is, the distinction between the functions proper to the Government, the judiciary, and the General Courts. Now I refer to the aspect that pertains to the Government and the judiciary.
In the damaging confrontation between the two major blocks in which, unfortunately, political life in Spain is currently settling, it is common to resort to the courts to submit political questions to them or even to resort to issues whose knowledge by the jurisdiction already constitutes a true political weapon.
These approaches, which in our days are reaching exacerbated extremes, contribute to blurring the function of the judicial bodies and muddy the implementation of the principle of separation of powers because they entangle them to a greater or lesser extent in political debate and sow seeds that can call into question their independence of action and judgement.
A fearsome threat to the separation of powers that assails us venomously is the politicisation of the judiciary. The Government in our representative parliamentary system is supported by a party or a group of them that forms the more or less consolidated parliamentary majority, and the Government can act politically through the political parties that support it in Parliament.
“The project of the new Criminal Procedure Law assigns the criminal instruction and the exclusivity in the direction of the judicial police to the Public Prosecutor's Office without specifying beforehand or at least in parallel the type of Public Prosecutor's Office to which this crucial task will be entrusted.”
Through these channels, the separation of powers pales and here is a concern that afflicts many jurists regarding the situation of our Rule of Law. It is about the Government wanting to impose its criteria through the action of the political parties that support it in matters connected more or less directly with the judicial function. I highlight in this regard the disputes over the appointment of the members of the General Council of the Judiciary, the promotion of legislative projects such as the new Criminal Procedure Law that assigns the criminal instruction and the exclusivity in the direction of the judicial police to the Public Prosecutor's Office without specifying beforehand or at least in parallel the type of Public Prosecutor's Office to which this crucial task will be entrusted and ensuring its configuration and operation based on the principles of greatly reinforced autonomy, legality, and impartiality so that it can act without political interference, something extremely important for the adequate application of criminal norms and, by extension, for the healthy and vigorous validity of the Rule of Law.
The insanity of the politicisation of the exercise of the judicial function is also fostered by the regrettable tendency that is spreading to classify members of the judicial career as progressive, moderate, or conservative, as it tints their activity with prejudices of a political nature that tend to muddy the perception of the proper application of the legal system.
I believe that the situation has reached its extreme concerning the Constitutional Court. As the Professor of Constitutional Law Ana Carmona writes:
The climate of intense polarisation that dominates the Spanish political landscape is immediately projected in the composition of the Constitutional Court and consequently, in the exercise of the function of the highest guarantor of the Supreme Norm that corresponds to it.
3
The Trend of Emptying the Functions Proper to the General Courts in Favour of the Government as a Cause for Concern
The legislative function is one of the functions of the General Courts that has suffered greatly and has notably jeopardised the separation of powers.
As the philosopher Manuel Freijó writes:
People, peoples, animals, rivers, mountains, works of art are spoken of as having a soul. Everything that has life has a soul.
Thus, stretching this concept, we can ask what the soul of the Constitution of 1978 is, understood as the deepest and densest political-intellectual breath that animates that constitutional body.
As I have already pointed out, the soul of the current constitutional text is plurimorphic, but, even so, it is true that one of its fundamental aspects is parliamentary. The proclamation that “Spain is constituted as a social and democratic Rule of Law,” the acknowledgment that a superior value of our legal order is political pluralism, and the proclamation of the parliamentary monarchy as the political formula of the Spanish State, all contained in Article 1 of the Constitution, lead to the centrality of the General Courts.
One of the capital axes of parliamentary centrality is the legislative function. I acknowledge that the exercise of this transcendental task has suffered since 1978 the effects of what I have called the oscillating centrality of the Congress of Deputies, extendable to the General Courts. However, in recent years, more than an oscillation, its exercise has suffered a predominant movement to one side: that of its deterioration.
I proceed to outline some of the, in my opinion, causes of the deterioration of the legislative function.
The Advance of Legislative Populism
The waves of populism are reaching the exercise of the legislative function. Among other characteristics, this phenomenon places the political will of the parliamentary majority above the legal rules that regulate the process for drafting laws and preserving the guarantees of minorities.
Legal populism, moreover, is very resistant to alterity or, in other words, to taking into account, at least weighing, interests and viewpoints different from those it itself supports.
The Legislative Function in the Hands of the Government
1. With the loss of the political supremacy of the General Courts, there corresponds the accelerated transfer of a significant part of the legislative function to the Government.
There are several manifestations of this unfortunate change. Perhaps the most striking is the proliferation of decree-laws, although it is not the only one.
The Government – improperly substituting the General Courts – has become the true legislator through the abusive use of decree-laws, which have progressively become the ordinary way of legislating. The figures are striking: between 2000 and 2015, the average of decree-laws reached 40% of legislative activity; from 2016 to October 2021, 216 decree-laws were issued compared to only 69 laws [...] From then until now, decree-laws account for 70%. Despite the fact that the Constitution attributes (art. 66.2) the legislative power to the General Courts and only exceptionally to the Government through decree-laws (art. 86.1), the exception has become the rule, such that the executive power has virtually completely supplanted the legislative power.
By this abusive path, one of the factors that the appropriate exercise of the legislative function demands suffers immensely. Publicity, transparency, the possibility of integrating interests, and the existence of mechanisms for technical improvement that characterise a properly processed bill almost completely disappear, and everything is reduced to a debate in the full Chamber in which, in addition to the oral intervention of a few, the participation of deputies is reduced to voting, with no possibility of presenting amendments.
2. Another channel of the accelerated deterioration of the legislative function has been the inappropriate and abusive use of legislative proposals, through which certain parliamentary groups have exercised legislative initiative to address matters so proper to the initiative of the Government, that is, so proper to the bill, as are criminal matters and the creation of taxes.
Along this path, prior information, the participation of advisory bodies in the preparation of the bill, and of citizens and interest groups through the mandatory public hearings disappear with the impoverishment that derives from it for the correct exercise of the legislative function.
3. One more step in the lamentable deterioration of the legislative function that has gained strength is the presentation of amendments to legislative proposals even creating taxes, such as the vulgarly known tax on so-called large fortunes, which limit the ability of deputies and senators belonging to groups other than the proponent to present amendments, which grossly violates the full exercise of their legislative functions.
In the last two cases, what lies behind initiatives legislated in this way is, among other things, a mechanism for a significant part of the legislative function to fall even more into the hands of the Government.
Indeed, parliamentary groups are not technically prepared to articulate through the legislative proposal the approval of norms as complex as those of a criminal and tax nature. Who is behind the legislative proposal is formally the parliamentary group and materially the Government, more specifically the concerned ministerial department.
In this way, the Government frees itself from obstacles and requirements to exercise legislative impetus to the detriment of the properly developed legislative function of the General Courts, of the exercise of their rights by certain parliamentarians, and of the technical-legal quality of the laws.
The Growing Lack of Preparation and Technical Specialisation of Deputies and Senators
The personal characteristics of deputies and senators have undergone a notable transformation since the constituent legislature and the immediately subsequent ones, something that can now be affirmed with respect to all parliamentary groups.
“The arrival in the Chamber of parliamentarians with almost exclusively political careers and with less technical training and professional experience than in already distant stages... In parallel to a huge normative proliferation accompanied by great technical complexity. The combination of these extremes results in a situation that notably favours the deterioration of the legislative function.”
The arrival in the Chamber of parliamentarians with almost exclusively political careers and with less technical training and professional experience than in already distant stages is a constant applicable to the current composition of the Congress of Deputies and the Senate.
In parallel to this process, there has been a huge normative proliferation accompanied by great technical complexity.
The combination of these extremes results in a situation that notably favours the deterioration of the legislative function. We are faced with a flood of increasingly complex technical norms and, on the other hand, a decrease in the specialisation and technical capacity of legislators.
This, in turn, results in the emptying of the substance of the legislative function. The individual deputy or senator and the parliamentary group to which they belong, as they do not have sufficient technical capacity to address the legislative task with the necessary conditions of information and knowledge, are left in the hands of those who hold positions in the Government and their technicians. This means that the participation of the Chamber in the exercise of the legislative function is inexorably diminished and tends to become a process of formal stamping rather than substantial elaboration of a norm.
The Deterioration of the Parliamentary Spirit and Style
The spirit and style are essential components of the parliamentary soul. They are required of any institution of this nature that aspires to adequately develop its crucial functions.
A certain spirit must permeate parliamentary activity and surround everything done in the Chamber and those who do it, even if it is not reflected in political or legal texts.
The spirit, in short, is the substance of the parliamentary soul and in its good version prevents interpretations of the regulatory norms that are merely formal or abusive that clash with representativeness, transparency, publicity, and the participation of all members of the Chamber in parliamentary tasks.
In turn, the style is the complement of the spirit, and both are basic pieces of the parliamentary soul. Good parliamentary style goes far beyond what a written norm may say. It must permeate the relationships between deputies and senators, both individually considered and as members of a group, and, whether or not it is reflected in a written rule, it must be breathed in the Chamber and preside over these relationships. Good parliamentary style imposes that, however deep and insurmountable political differences may be, they are expressed with due decorum and respect towards the opponent. Insults, contemptuous gestures, loud disparaging shouts, disrespect, to name just a few of the many possible examples, seriously damage the style that good health of the soul of the Chambers demands. Good style goes far beyond mere courtesy; it shapes the shell of the parliamentary spirit, maintains a close connection with it, and greatly aids the good functioning of the parliamentary institution and, ultimately, the democratic health of our political system.
The soul of the Congress of Deputies and the Senate is sick due to the deterioration afflicting its spirit and the deteriorated parliamentary style that predominates. The phenomenon unfortunately dates back a long way, and, to a greater or lesser extent, there are many and varied causes, although, as I have already pointed out, it has been accentuated in recent legislatures. All this has contributed to the discredit of deputies and senators individually considered, of the Chambers, and ultimately, of the democratic system.
The Abusive Use of Budget Extensions
The need to combine the demands of the budgetary principle of annuality with the continuity and permanence of State action constitutes the basis on which the figure of the budget extension is erected, which responds to the abnormal situation that on 1 January of the corresponding year the corresponding Budget has not been approved.
Article 134.4 of the Constitution has opted for the system of automatic extension to address this situation.
The validity of the extended state budget is temporally placed above the principle of annuality, as it will last until the new Budget is approved, regardless of how long such approval takes to occur. Now then:
The temporary nature of the Budget Law that is also constitutionally fixed, comes into clear collision with an abusive use of the automatic extension that must be a solution that is automatic but provisional, as well as exceptional, which resolves the circumstance that the executive power is unable to approve the Budgets within the determined period, without it being able to become a tool in the hands of the Government that it can use at will, thereby disregarding the legitimate competencies of the Chambers.
“We have witnessed budget extensions for up to two consecutive years, with a renunciation to present the corresponding General State Budget Law for 2024 and 2025, a clear affront to the constitutional provisions that greatly deteriorates the budgetary aspect of legislation.”
In recent years, as for example with respect to Law 31/2022, of 23 December, on the General State Budgets for the year 2023, we have witnessed budget extensions for up to two consecutive years, with a renunciation to present the corresponding General State Budget Law for 2024 and 2025, which constitutes a clear affront to the constitutional provisions in this matter and greatly deteriorates the budgetary aspect of legislation, something capital in any representative parliamentary system.
4
Legal Uncertainty is Spreading
Concern regarding the current situation of the Rule of Law in Spain produces that legal uncertainty, one of its capital foundations, spreads with intensity. The overlapping of the sub-orders that make up the Spanish legal order; the flood of hasty normative changes nourished by legal populism; the insidious cracking of categories and concepts developed through a prolonged and fruitful doctrinal and jurisprudential trajectory in Spain; the intensification of exaggeratedly functional and purely finalistic legal interpretations as well as others steeped in economic reductionism relegating the legal, are, in addition to other factors outlined throughout the discourse, factors that provoke growing anxiety. ♦
