09/01/2015

Roser Bach Outlines Challenges Facing Judges in the 21st Century

On Friday, 20 December 2014, Roser Bach, a member of Spain’s General Council of the Judiciary, spoke on "New Challenges Facing Judges in the 21st Century" to Law students within the framework of the continuing education cycle organized by the Faculty of Law and held throughout the school year.

Bach began the lecture with an anecdote about Oliver Wendell Holmes, Jr., an early-20th century Associate Justice of the American Supreme Court. She said, “At that time, judges merely applied the law without considering justice. They did not make value judgements. The times have changed and so has the judge's job. These transformations have come about in advanced democracies where the judiciary has a great deal of power in the broadest sense.”

Bach outlined the main changes that have occurred throughout history. The first change affected political structures during the 20th century, when the principle of legality became the chief guarantee of justice. The independence of the judiciary system was based on the rule of law and the application of the law as the maximum expression of popular will. Bach went on to say, “This application had to be formal and automatic. The laws had to be complete and their wording clear. But judges’ powers were limited at that time.”

Later, with the onset of the democratic state, strict constitutions arose to ensure that lawmakers were also subject to the law. Bach said, “These texts included fundamental principles and rights to provide checks and balances for the legislative branch, with a set of basic rights for citizens. Judges no longer simply applied the law in a formal way without being concerned about the result. Instead, application had to comply with the constitution.”

Finally, Bach mentioned how globalization is affecting countries more and more. It has fostered new conflicts and intensified others. It has been so influential in the area of justice that new international regulatory structures and regulations have been created. Bach said, “We've gone from a pyramid-shaped internal structure within individual countries to a new paradigm of a legal system with a network structure involving new organizations. This establishes a certain level of legal certainty, given that globalization touches on all aspects of life.”

In her conclusion, Bach reflected on the increasing role of the judiciary in the 21st century. “Its growing importance is clear from the fact that more people now consider justice to be a public service. This is a relatively new idea. People did not think of the administration of justice in the same way as health and education.” The speaker also noted, “The level of litigiousness in Spain is much higher than in other European countries”.