Constitutional Loyalty and Democracy

Abstract

Abstract:
The analysis carried out in this paper addresses the problematic issue of the validity and effectiveness of the 1978 Constitution, on the basis of a dogmatic approach to the loyalty principle. The paper starts with the relevant fact that loyalty cannot be expressly found in the constitutional text of the Spanish Magna Carta, albeit case-law and scholars have developed said concept in other areas of the legal order, for other levels of government and in Comparative Law. Nevertheless, its validity is not only apparent but necessary in light of the evolution of our constitutional system, and yet, this issue has not been thoroughly examined by the legal doctrine. Hence, loyalty is argued to be based on three tenets: the democratic principle, constitutional supremacy from a multi-level perspective, and the twofold formal/material dimension of the Constitution. Above all, the loyalty principle confronts and brings together the much needed compatibility between Law and Politics in addition to that between Law and Democracy. On this basis, the present paper explores not only the origin and evolution of the loyalty principle, but also its basis and rationale, so as to address its role in the legal order and in the context of the configuration of power and of multi-level constitutionalism.