Many people in Spain influenced by the big screen, especially by the Irish film In the name of the father, have a preconceived idea about Irish Law and they think that the only differences between both legal systems are restricted to the barristers wears wigs and gowns during the court proceedings and that the witnesses should put his hand on the Bible while they repeat the following oath “I swear by Almighty God that the evidence I shall give shall be the truth, the whole truth and nothing but the truth”. However, there are many differences between both legal systems due to their different origins.
The Spanish Law consist in Continental Law, whose origins are found mainly in the Roman law, but also has influences from Germanic and Canonical Law. This is the law used in most of the European countries and in the territories colonized by them throughout history.
Nonetheless, the Irish Law comes from the Common Law, and this one is derived from the system applied in medieval England, and which is used in most of the territories that have British influence.
Having said that, some people wonder why the Common law does not have large influences from Roman law, if England, cradle of this kind of law, was occupied almost four hundred years by them. This is due to the fact that the Romans occupied Britain, the influence of Roman law was very scarce, because they only occupied the Southwest British areas and the rest of the country was occupied by other Celtic tribes.
The island was abandoned by the Romans because it was beginning to be object of raids by different barbarous civilizations. In this way, when the Romans abandoned the territory, Britain was divided into independent regions between Saxons, Angles, Jutes and Danes, and each population with its own law, based in their customs.
The Common Law system has its origins in 1066, when William I won the Battle of Hastings against the Anglo-Saxons, and from there, he gradually dominated the rest of the British Isles. As a result of his victory, William I ascent to throne and he unify under a same Crown the ancient Anglo-Saxon kingdoms. As a King, he tried to centralize the administration of Justice and to resolve legal matters should be looked for what was common in local customs; this fact involved the beginning of the Common Law.
As Great Britain already had an evolved and coherent legal structure, derived from early centralization of law, of customary origin, removed the need to import beyond legal compilations which, by contrast, were necessary in the rest of Europe, because there the law had not yet been conveniently uniformed and there were a vast amount of scattered rules of medieval origin very difficult to integrate coherently.
Nowadays, the main sources of the Spanish Law are: the law, the custom and the general principles of law. Unlike the Irish legal system and all legal systems derived from the Common law, in Spain the jurisprudence is not a source of law itself. However, the Spanish Civil Code establishes that jurisprudence will supplement the legal system. So, although it is not a proper source, its faculty to modulate the law is of high importance and it is considered to be an indirect or secondary source of law.
Thus, in Irish Law the jurisprudence has binding effect, i.e. it is compulsory for all judges, who cannot depart from the decisions taken previously by other judges. Nevertheless, in the Spanish law the judgements made previously by other judges do not have binding legal effect for the rest of the judges.
In other words, in the Continental system, each judge can solve the case in the most fair and suitable way, even they can depart from the majority case-law provided that it can produce a ruling set to right.
The priority of rules in Spanish law is very similar to the hierarchy of norms in Ireland, being both presided over by each country’s respective Constitution. Both Constitutions regulate the functioning of the public powers and the fundamental rights of its citizens. These Constitutions have material supremacy that determines the contents of the rest of the rules. In this way, any rule of law which is part of the Spanish or Irish legal system shall be subject to the requirement of validity as to the compatibility with the Constitution; all rules that are contrary to it being null and void. Therefore, there is a public organ which is responsible for ensuring compliance with such requirement, in Spain the Constitutional Court and in Ireland the High Court.
The Spanish Law is a complex system, due to different legal systems that coexist because of the Spanish territorial organization into autonomous communities.
Spain is structured in a central State and 27 autonomous communities; those communities can also create laws through their parliaments; they can create regulations through regional governments. These regional rules are at the same level within the normative hierarchy as the State rules; between there it can be no conflict because they treat different materials, and in addition, regional rules only have validity in the territory of the autonomous community.
Spanish courts as Irish are organized hierarchically. There is a system of appeals against the decisions of lower courts to higher courts and to the Supreme Court, which is the highest judicial body in all branches of justice excepting provisions concerning constitutional guarantees.
Spanish jurisdictional territory coincides with the administrative division of the territory, and each territorial unit has a specific type of court. In this way, we differentiate the Municipalities in which there is no first instance and examining Court but they are served by Courts of the peace who carry out less relevant questions; the Judicial districts which have first instance and examining Courts (Criminal Courts, Courts for the judicial review of administrative acts, Labour Courts, Juvenile Courts); the Provinces have a Provincial Court. And finally Each Autonomous Community has a High Court of Justice. In addition, over the whole territory have jurisdiction the Supreme Court and the National Court.
The main differences between both jurisdictions are, in the civil
field that in Spain the claim has to be argued in full in the
first document submitted with all of the facts, the evidence and the case law
relied on. In civil matters in particular the Irish petition submitted
is more flexible with requirements for evidence because you can present in later in the
proceedings. And in the criminal field, the Spanish Judge is an investigating Judge
with powers to call for evidence, to question witnesses and to decide what
information can and cannot be released to the parties at the preliminary stage
of the proceedings. In the Irish system it is the role of the adversarial counsel to question witnesses and provide evidence with the Judge having a role in testing that evidence and asking additional questions but not investigating matters that are not brought before him by the prosecution and defence.
Moreover, in Ireland it is possible to represent yourself in any judicial proceeding. In Spain not only can you not act in person but you also have to name a
court procurator as well as a lawyer in all proceedings except for
minor criminal allegations.
Furthermore, in Ireland a Lawyer is anyone who could give legal advice. So, this term enclose Solicitors, Barristers. The difference between them is that solicitors can act in the place of their client for legal purposes and may conduct litigation on their behalf. When the case demands a Courts case, if the Solicitor requires special advice, contracts the services of the Barrister. So, the Solicitor acts as attorney of the client, he represents the client. In instance, the barrister acts as per instruction of the Solicitor.
Spain has a similar division but is different to the Irish. In Spain the “Procuradores” represent the litigant procedurally in court and is the responsible for notifying the
parties of decisions and orders of the Court, while “Abogados” represent the substantive claims of the litigant through trial advocacy.
In conclusion we can see that there are many more differences than those observed with the naked eye and which are much farther away from the barrister’s wigs. As we have said the main visible differences, in theory and practice, between Irish and Spanish legal system come from their different origin, as, on the one hand, the Irish Law belongs to the family of the jurisdiction of the Common Law, and on the other hand, the Spanish Law belongs to the Civil Law jurisdiction.
In a theoretical way the main differences are that the Irish legal system is an open system, because it is a method which allows resolving any issue that may arise, as not using an interpretive technique of the rules, but that from the legal rules already formulated aim to discover the solution that is applicable to the specific case. Therefore, the first source of the Irish law system is through jurisprudence of her rule of precedent. On the other hand, the Spanish model jurisprudence plays a secondary role, since it is not considered as a source of law but nevertheless has a high binding capacity.
In a practical way the main difference is that the Spanish legal system is excruciatingly slower than the Irish one. In Spain there are backlog of thousands of cases, which means that it takes years for many cases to come to court.
Healy O’Connor Solicitors
