Judicial Independence in an Authoritarian Regime: The Case of Contemporary Spain

TLDR

Spain’s authoritarian regime, lacking democratic competition, would normally be expected to have a politicized judiciary, yet the country’s political system and judicial independence are paradoxically intertwined. The study demonstrates that Spanish judges exhibit significant ideological diversity and investigates how this diversity arises from the judiciary’s independence and the existence of parallel ordinary and extraordinary courts. The authors attribute the judiciary’s ideological diversity to its substantial independence in selection, training, promotion, and daily operations, which is maintained despite the regime’s control. They conclude that an independent ordinary judiciary is sustained by a parallel set of special courts that are closely supervised by the regime.

Abstract

The present Spanish regime is not a democratic one if by democracy we mean a political situation which: supplies regular constitutional opportunities for peaceful competition for political power (and not just a share of it) to different groups without excluding any signifcant sector of the population by force (Linz, 1964). Rather, it has been characterized as authoritarian, using that term to describe a distinct genus besides democracy and totalitarianism. Generally, political democracy and judicial independence tend to be associated, the former being considered a necessary though not sufficient precondition for the latter. Thus, one might be inclined to expect contemporary Spain to display a strongly politicized and ideologically uniform judiciary. The first section of this paper will suggest, however, that this is far from being the case: recent survey data from a national sample of Spanish judges testify to the existence of a remark- able degree of ideological diversity among the members of the Spanish judiciary. Such a pattern is explained in the second section of the paper as the correlate of the considerable degree of independence from the political system which the Spanish judges seem to enjoy with respect to their selection, training, promotions and everyday activities. This unexpected coexistence of a non-democratic political system with a substantially independent judiciary may be seen as a puzzling paradox requiring explanation. The last section of this paper attempts to provide it, pointing to the de facto existence in contemporary Spain of two parallel systems of justice: the ordinary and the extraordinary (the second being in charge of all cases with an actual or potential political relevance). The existence of an independent ordinary judiciary, it is argued, is thus made possible by the existence of a parallel set of special courts closely supervised by the regime.