Selection, Professional Profile and Initial Training of Judges in Spain

Abstract

The judicial function has changed significantly since the consolidation of what has been named “constitutional legal system” or “neoconstitutionalism”, as a contrary of the “legalist legal system” or “legalist positivism”, in civil law systems. In what can be considered as a new legal paradigm, it is obvious that the role of judges changes, being that they cannot limit themselves to a mechanical application of the (statutory) law, but they should taking into account constitutional previsions, open and axiologically dense. This takes place alongside with the strengthening of the judge as manager of social conflict, responsibility which exceeds the role as a “mouth of the law”, which has been assigned to he/she since Montesquieu.

This situation has to be contrasted with the selection process and initial training of judges in Spain, centered since 1870 in a model of competitive examination, which has been particularly impervious to the introduction of correction factors, since its progressive consolidation. As it is conceived nowadays, competitive examination brings us closer to a model of judge which is what Spanish Constitution, the emerging European legal culture and the complexity and uncertainty derived from what is call globalization turn into anachronistic. In this situation, the insertion of legal studies into the European Higher Education Area and the reform of the admission to the Bar in Spain are opportunities to start the process to change the model of selection and initial training of judges.