The binding effect of unconstitutional court judgements and its relation with legislative power in Spain

Abstract

The purpose of this article is to review Spanish doctrine and legislation in order to establish whether there is a prohibition that prevents legislative responses to unconstitutional judgments in Spain. In order to determine whether (or not) there is such a limit in Spanish constitutionalism, first of all, the paper verifies how the binding effect of unconstitutional sentences affects public authorities, in order to establish that it is implausible to sustain the same degree of binding, with respect to legal operators such as judiciary or public administration, and the legislative power. Subsequently, the paper faces the difference between the binding effect of unconstitutional judgments to lawmakers and the eventual prohibition – arises from that effect – for Parliaments that would prevent them offering legislative responses. Lastly, based on the above reflections, the possibilities of inter-institutional dialogue in Spain are explored.