Hostname: page-component-78c5997874-v9fdk Total loading time: 0 Render date: 2024-11-17T14:55:42.289Z Has data issue: false hasContentIssue false
  • English
  • Français

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

Published online by Cambridge University Press:  01 July 2024

José J. Toharia
José J. Toharia*
Affiliation:
Universidad Autónoma de Madrid
Rights & Permissions [Opens in a new window]

Extract

Core share and HTML view are not available for this content. However, as you have access to this content, a full PDF is available via the ‘Save PDF’ action button.

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.

Type
Research Article
Information
Law & Society Review , Volume 9 , Issue 3 , Spring 1975 , pp. 475 - 496
Copyright
Copyright © 1975 The Law and Society Association

Footnotes

*

The present paper draws on materials in Chapter 8 of my (1974a) Ph.D. dissertation. The research on which it is based was made possible by a grant from the Foreign Area Fellowship Program (New York). A previous version of this paper was read in the session on the Sociology of Judicial Proceedings chaired by Lawrence M. Friedman at the VIIIth World Congress of Sociology (Toronto, August 1974). I gladly acknowledge Marc Galanter's invaluable assistance in the preparation of this final version.

References

Mayor, Alto Estado, Anuario Estadístico Militar.Google Scholar
COHEN, P.S. (1969) Modern Social Theory. New York: Basic Books.Google Scholar
DAHRENDORF, Ralf (1958) “Toward a Theory of Social Conflict,” 2 Journal of Conflict Resolution 170.Google Scholar
HORTON, John (1966) “Order and Conflict Theories of Social Problems as Competing Ideologies,” 71 American Journal of Sociology 701.Google Scholar
I.N.E., Estadísticos Judiciales de España.Google Scholar
JUNQUERA, Juan (1972) La crisis de las oposiciones. Madrid: Escuela Nacional de Administración Pública.Google Scholar
LINZ, Juan J. (1964) “An Authoritarian Regime: Spain,” in Allardt, E. and Littunen, Y. (eds.) Cleavages, Ideologies and Party Systems: Contributions to Political Sociology. Helsinki: Transactions of the Westermack Society.Google Scholar
MERRYMAN, John H. (1969) The Civil Law Tradition. Stanford: Stanford University Press.Google Scholar
MURRAY, Daniel E. (1963) “A Survey of Civil Procedure in Spain and Some Comparisons with Civil Procedure in the United States,” 37 Tulane Law Review 399.Google Scholar
POUND, Roscoe (1963) The Spirit of the Common Law. Boston: Beacon Paperbacks.Google Scholar
TOHARIA, José Juan (1974a) The Spanish Judiciary: A Sociological Study. Justice in a Civil Law Country Undergoing Social Change Under an Authoritarian Regime. Ph.D. Dissertation, Department of Sociology, Yale University.Google Scholar
TOHARIA, José Juan (1974b) “Notas sobre el origen social de la judicatura espagñola,” 7 Sistema 101 (October).Google Scholar
TOHARIA, José Juan (1974c) Modernizatión, Autoritarismo y Administración de Justicia en España. Madrid: Cuadernos para el Diálogo.Google Scholar