The Judicial Function in the frame of the Spanish Social and Regional State: Power or Public Service?

  • Ciro Milione
DOI: https://doi.org/10.18543/ed-62(2)-2014pp287-317
Keywords: Power, judiciary, service, public, principles, Constitution

Abstract

The common will of a correct application of the law, plays a central role in the process of transformation which is actually going on in our democratic societies. We are witnessing the evolution from the «rule of law» to the «State of justice» with a citizenship which is more conscious and aware of their own prerogatives based on Law. Moreover, the areas of our coexistence which are regulated by legal rules are, increasingly, broader. This is also a cause of this evolution. This whole situation requires the maximum effort of Public Powers to ensure that the judicial system is efficient, effective as stated by our Constitution and by those principles that define our Autonomic State. Among them stand out the principle of democratic legitimacy and judges submission to the law, the principle of responsibility, the principle of exclusivity, the principle of unity of the jurisdiction and the territorial dimension of the judiciary in our regional State. Given this evolution process, it is worth to consider whether it makes sense to set the judicial function as a State Power, following the Montesquieu’s tradition. We still consider the judiciary as a «power» because of a «misunderstanding». We forgot that the two traditional models of Justice –the Jacobin model and the North American– has been useful to address different issues and to give different answers to equally distinct claims, granting a democratic status to the judicial function in opposite ways. Thus, as is well known, the democratic legitimation of the judiciary in North America occurs through direct or indirect elections which permit to configure it as a real power. However, the French model that followed the XVIII century revolutions and that has been generally adopted throughout Europe, is grounded on different premises: the «supposed power of the judges» lies exclusively in the application of a general and abstract rule to the case; in being «the mouth of the law» to which they are subjected. Our approach is to reconfigure the judiciary for what it really is or it should be: an essential public service that the State should provide the public according to a series of constitutional principles and quality standards. This study reflects on these issues.

Published online: 23 December 2014

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Published
2014-12-23
How to Cite
Milione, Ciro. 2014. “The Judicial Function in the Frame of the Spanish Social and Regional State: Power or Public Service?”. Estudios De Deusto 62 (2), 287-317. https://doi.org/10.18543/ed-62(2)-2014pp287-317.
Issue
Vol. 62 No. 2 (2014)
Section
Studies

Last update: 08/02/2022

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