The responsibilities of the judge in Spain: a historical-juridical survey (1834- 1870)

Abstract

This work focuses on the construction and on the role that plays the disciplinary responsibility of judges in Spain during the nineteenth century, particularly between 1834, characterized by the coming into power of the liberal State, and 1870, when the Ley orgánica del Poder Judicial (Organic Act for the Judiciary) established, for the first time, the three judicial responsibility categories: civil, criminal and disciplinary. The importance of the first two “responsibilities” – although they should have been those most characterising the judges who were theoretically subjected only to the empire de la loi – was actually stifled by the role that disciplinary control over the magistracy played. Indeed, from mid-century onward, a great transformation took place: the judicial apparatus was administration-alised and, as a consequence, also judges’ role and the way of controlling their functions was bureaucratized. The new “disciplinary responsibility” would be the result of the Central Government absorption of the internal self-disciplinary powers residing in the courts themselves. However, this result is not merely a consequence of this process of administration-alisation; on the contrary, as the disciplinary responsibility established itself, it converted itself into the instrument which modulated the traditional role of judge inherited from the ancien régime and which built the new hierarchy – and the new way of administering justice – of the judicial apparatus within the frame of the Spanish nine- teenth-century liberal State.