The Judiciary and the ‘State of Law’

Abstract

After nearly four decades of dictatorship under General Franco, it was to be expected that the 1978 Constitution should place particular emphasis on legal accountability: the rule of law must underpin any democratic state’s claim to political legitimacy. Of course, all regimes seek to assert their legal authority, and the Franco dictatorship was no exception in this regard. However, in contrast to the situation in a dictatorship, the declaration that the law is supreme in a democracy requires that citizens be able to enforce that law (Díaz, 1979: 11, 13–18). Thus, a central concern of Spain’s new democracy was that it should be established as a ‘state of law’ (estado de derecho) in the sense of its constitutional arrangements being both legally accountable and enforceable. Yet, surprisingly, English-language texts on post-Franco Spanish politics have virtually ignored the legal dimension of the democratic state.¹