The defence of the democratic constitution in extraordinary circumstances: the law of exception in comparative law and in spanish constitutional history

Abstract

In this paper we examine the meaning of the law of exception and how it fits into the Spanish constitutional system. To this effect, we have examined the models of comparative law that Spain has followed to restore its disrupted constitutional system. Historically speaking, it was basically at the time of North American and French Revolutions when concern arose about how to incorporate the institutions related to constitutional protection into the constitution itself. British singularity was also manifested in the way in which specific protection for the defence of the constitution and the law of exception were understood and included, using institutions such as martial law and habeas corpus. The suspension of habeas corpus as an extraordinary instrument for protecting state organisation was considered in the American Constitution of 1787 and is thought of as a precedent of Article 55.1 of the current Spanish Constitution of 1978. During the period between 1812 and 1869, the lawof exceptionconsidered in historical Spanish constitutions covered only the suspension of guarantees. The Repu-blican Constitution of 1931 preserved the framework of the Constitution of 1869, with certain major alterations. The most significant regulatory instruments of this legislation were the Law of Defence of the Republic and the Law of Public Order of 1933. After the publication of this latter law, which beca-me the extraordinary regulation that has been put into practice most often and most in depth, Spain experienced an almost permanent state of “constitutional abnormality”. It is important to highlight the fact that many of the precepts of the Law of Public Order for the defence of the constitutional regime established by the Second Republic could be transferred, with very similar content, to the Francoist Law of Public Order that managed to remain in force until much later. It was finally repealed by the Organic Law for the Protection of Public Security, L.O. 1/1992