Jurists and the 'normative value' of the constitution

In contrast to what one may think, that notion of a 'master norm' is not simply an 'invention' of legal theorists. Of course, academic lawyers usually do not invoke norms located above those contained in the source they identify as supreme (norms, that is, which would, in a certain sense, be more basic than these).

"Of course, the issuing of a supreme norm, above the highest organs of the State, is done by en­acting a written text, the so-called written constitution, whether it is given the name of Consti­tution or some other name; but there is a constitution as a norm only when the order stipulates that it is obligatory to comply with those prescriptions and that, therefore, their violation is un­lawful." (De Otto 1989,15)

"If the order does not contain such a provision, i. e., if the violation of the written constitution is not unlawful, then the provisions of that constitution are constitutional only in the sense that they are included in the constitution, but in fact they are not even norms, because a norm that may be violated lawfully is no norm. On the contrary, if the order stipulates that it is obligatory to obey the written constitution, all its provisions are equally obligatory, whatever matter they may treat, and all of them have the characteristic of a supreme norm.

Obviously, the author cannot explain the conditions that confer truth to the as­sertion that the Constitution of 1978 is the supreme source of the current Span­ish legal order, and he takes refuge in the formula that it is "what the order sti­pulates". Since, apparently, reference to the legal order can point to nothing but the norms that order contains, his assertion can be interpreted in two ways. The first is that when he speaks of the 'order' he refers to some norm belonging to the constitution. The second possibility is that it is a norm apart from the constitution itself. In a work whose influence on Spanish legal culture can hardly be exaggerated, Eduardo Garcia de Enterria has used both of these ways for grounding the assertion that compliance with the constitution is obligatory. Thus, he writes:

"[...] our Constitution explicitly attributes a normative, directly binding value to the constitution" (Garcia Enterria 1988,61)

"The first thing one must state with absolute clarity is that the entire Constitution has an imme­diate, direct normative value, as can be deduced from article 9.1: 'The citizens and the public powers are subject to the Constitution and the rest of the legal order." (Ibid., 63)

"This interpretation is corroborated, as in a true borderline test, by the most conspicuous case of the strictest subordination to hierarchical organization and orders: that of persons belonging to the military organization; the Royal Ordinances for the Armed Forces, enacted on December 28, 1978, in their article 34 explicitly stipulate that the obligation of compliance with the orders of a superior for all members of the Armed Forces [...] has the following limit: 'when the orders entail the execution of acts manifestly contrary to the laws and custioms of war, or if they are a crime, especially against the Constitution'." (Ibid., 64)

Thus, implicitly in Ignacio de Otto and explicitly in Garcia de Enterria, we find two lines of reasoning for a foundation of the obligatoriness of the Constitu­tion: the first is that the Constitution is obligatory because the Constitution itself says so; the second is that the Constitution is obligatory because a norm belonging to the legal order, but not to the Constitution itself, says so. Obvious­ly, neither one of the two ways can found anything at all.

What neither Ignacio de Otto nor Eduardo Garcia de Enterria seem to have noticed is that the question of how to identify the supreme norms of a legal system is a problem that cannot be solved from within the system itself: any attempt in that direction either leads to a circular argument (the Constitu­tion is obligatory because that is what the Constitution itself says, or what a norm says which, itself, is obligatory only according to the Constitution) or to nothing (the obligatoriness of the Constitution is asserted without offering any reason at all; the Constitution is said to be obligatory because it is).

Besides, it is strange that Garcia de Enterria tries to present as a fact what, at the time of his writing (the first version of his work is from 1980), was only a proposal. What Garcia de Enterria proposed in 1980 is that the norma­tive claims of the Constitution be recognized.^[67] Thus, in the Preface, where he explains the genesis and motivations of his work, he writes:

"The task was to make possible, with great urgency, the application of a constitution bom with an explicit normative intention but, nevertheless, threatened by our tradition which, from the be­ginnings of the constitutional period, was never suspended and which regarded constitutional provisions as mere 'program norms', addressed to the legislator simply as non-binding recom­mendations, and with no effect of their own on citizens and judges.

Of course, Enterria's work has been successful. But that is so because our judi­ciary^[68] and the Spanish legal community as a whole have accepted a norm — necessarily located outside of the legal system (in the sense that it is not pre­scribed by any authority of the system) — that commands the recognition of the constitution as the supreme source of that system, and have agreed not to understand it, as used to be the case in the predominant tradition of Spanish constitutional jurisprudence, merely as a political document. And it is this fact of a shared acceptance of an unwritten norm, and not any constitutional state­ment, that today gives truth to the proposition that 'The Constitution of 1978 is the supreme source of the Spanish legal system'. As late as 1982 (decision of April 8), our Supreme Court has denied direct normative value to the Constitu­tion, regarding it merely as a document to guide the public powers, and espe­cially the legislative power whose intervention was regarded as absolutely necessary to transform constitutional standards into legal norms, that is, norms able to serve as a foundation for the decisions of the courts. Suppose that line of jurisprudential reasoning had quietly taken hold of all our law-applying or­gans. In that case, the proposition that 'The Spanish Constitution of 1978 is the supreme source of the Spanish legal system', understood as a proposition about the legal system actually in force, would clearly be false. Despite of its theore­tical shortcomings, Garcia de Enterria's work, without any doubt, has decisively contributed to make that proposition true today.

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