Good Faith in Spanish Constitutional Law

Abstract

This study addresses the validity and progress of the Spanish constitutional system in the light of the principle of loyalty and from the complex configuration of the principle of division of powers, horizontal and vertical, after more than 45 years of democratic experience. And it does so without losing sight of two elements: firstly, the multilevel approach that constitutes, for the time being, a guarantee that the various powers can readapt and achieve the desired balances; and secondly, the mechanics of the counterpowers, sometimes invisible, but which can contribute to the correct functioning of the system. Territorial tensions have been an important legal-political destabilising factor in recent years. Added to this is the unstable coexistence between the gubernaculum and the jurisdictio, with significant strains on the rule of law. Observing these problems from the perspective of the principle of loyalty requires an in-depth conceptualisation, reflection on its elements – objective and subjective-, its placing in the context of good faith, and a search for the anchoring of this principle in the constitutional text. It is a question, therefore, of considering the regeneration of the democratic system on the basis of the principle of loyalty, delving into its complex contours in order to demand greater activism in its configuration and implementation, which is the responsibility of public and private operators. This will serve to value and regenerate what has undoubtedly been the “happiest” stage – in the constitutional sense – of Spanish history since 1978.