Beyond judicial activism
30 de octubre de 2018

In Spain, as in other countries, Justice has become a battlefield where the legal corpus sees its hegemony threatened by other forces as ideology or public opinion. This is, in particular, the case of controversial cases with strong media traction such as that of the Pack (the gang rape of an 18-year-old woman on 7 July 2016 during the San Fermín celebrations in Pamplona) which, in a short period of time, generate a popular outcry that, in occasions, seems to bend the application of the law; task of judges. The weapons being employed in this sort of conflict are eminently the criticism directed not only towards the personnel of the Judiciary but also to mainstream media outlets, besides the intromission of other powers, in particular the Executive. Such whirlpool sheds doubt on the professionalism and independence of judges and courts, seriously damaging our democratic quality. And this leads us to wonder about the limits of the judicial activity in Spain’s liberal democracy.

Judicial activism and judicial populism

Interference of partisan ideologies and public opinion (channeled through mainstream media) translate into two parallel phenomena. The first ones, ideologies, are used to adopting the form of pressure from the Executive to the Judiciary. Sometimes, this is also due to the pressure of public opinion on Government whereas other times it is the Judiciary who tries to subvert the role of the Legislative. This is the so-called judicial activism, which consists of the forced reading of the law by judges, with the goal of reaching a decision different from that thought by the Legislative. Throughout this, judges look for ways to either differ from the work of Parlament or broaden the framework where they can make a decision. In any case, as professor Cabrillo points out, this mechanism makes judges become de facto legislators; «creators or rules and interpretations that grant legal effects to certain behaviours» (2005:218). The fight between finalist and formalist legal perspectives is far from new. The tradition of Anglo-Saxon judicialism or the jurisprudence of interests gives a greater prerogative and discretion to the judge who, when it comes to deciding weights not only the law, but also the needs of the two opposed parties. By contrast, the exegetic and historic schools defend the omnipotence of the Legislative or the prediction of consuetudinary law. What is new is the unbalance in favour of the first group in our country, which are precisely the ones that have characterized the least our judicial system.

It is not my goal to assess the virtues and defects of one model or the other, but it does not seem prudent to advocate for a balance between the two postures. The Aristotelian in medio virtus does not necessarily consecrate the equidistance. On the contrary, we must attend to the specific circumstances of each case to point out the right approach. To this date, in Spanish law, of continental tradition, the balance has been set by granting a non-normative character to jurisprudence, but nonetheless complimentary to the legal system. Therefore, jurisprudence is not binding —its main difference with respect to laws. Nevertheless, jurisprudence plays an essential role in interpreting laws and filling up legal gaps. Besides more rigorist positivist thesis, the judge is not, in Montesquieu’s terms, la bouche de la loi. On the contrary, the judges’ decisions must be found as binding hic et nunc, here and now, and only contending parties are bound by them. In short, the judge acts. But there is a leap from action to activism.

Regardless of the exact description of the current legal system, there is no doubt about the fact that the progressive tendency toward finalist judicialism puts at risk its very survival. This trend also opens a brand new set of puzzles and problems, in particular that of the delegitimization of the Legislature and, therefore, the representative democracy that motivates it.

At this point, it must be pointed out that, sometimes, judicial activism is caused by factors different from direct intervention from the Executive. In fact, in recent times, policy reforms aimed to solve the economic crisis have been the one affecting citizens and collectives the most, and caused criticism that judges have carefully considered when making a decision. Nonetheless, regardless of the reason, this activism damages not only the sacred separation of powers that must inform all liberal democracies, but also the legal security of economic agents, with its various implications —among others, for Justice itself.

As for judicial populism, that is the second sort of interference mentioned above, as it is something that speaks of the overreaching of judges in their competences. It is similar to judicial activism. However, whereas the latter looks for greater maneuvering for the judiciary in contrast to the legislative, the former seeks the citizenry’s approval and, at the same time, affinity between the judiciary and public opinion. Not in vain, public opinion is capable of put great pressure on it, creating true media judgments which occur in front of everyone, feed by leaks, partisan interests, ideologies, etc.

A gradual adaptation to social, cultural and economic demands should be welcome, but such a reform belongs to Parliament

The tax on mortgages

In the last few days, these phenomena is truly mainstream in light of the sentence no. 1505/2018 of the Supreme Court, which modifies previous jurisprudence with respect to the taxable party of the Impuesto sobre Actos Jurídicos Documentados; a tax which applies to mortgage loans. To this date, the regulation of this tax obliged the mortgagor to pay it. Now, in the latest jurisprudential turn, this obligation is relapsed in the lender entity. As expected, this resolution has been received by the general public with great division, opening a fault line between, on the one side, individuals, families, entrepreneurs and, on the other, banks. This tension has led the Supreme Court to review its decision of who must pay the tax.

Given this situation, there are numerous criticisms received by the Court, both external and from within the Administration itself, which harms the prestige and professionalism of this institution in particular, and the judiciary in general. Also, the step to review the decision has caused great legal uncertainty, given the fact that, until the issue is resolved, it is unknown who will ultimately be the taxpayer. Lastly, the economic consequences have not been delayed either, starting with a gloomy day on the stock exchange on the day the Court handed down the ruling. That they alone, there were joint losses for financial institutions of almost 6,000 million euros. The legal uncertainty resulting from this and other decisions of the courts shows that material justice has a high price.

Material justice in a crossroads

Subjecting justice to the moral compass of any judge or court is dangerous for two fundamental reasons. In the first place, because it is detrimental to the law itself, relaxing the provisions of the legislator and, therefore, elevating the judge as a de facto legislator. The incentive of magistrates to act like this is high, especially when their value ​​or interest are aligned with popular sentiment. Thus, not only does the pressure on public opinion come into play, but also the sensitivity to the praises that citizens give to them when they rise up as their defenders with a courageous attitude, confronting the great political powers or economic. In fact, the temptation to communicate with a small dose of judicial populism is very high. However, and although the aspiration of the jurist, as Gomá (2016) points out, must be the obtaining of material justice, the sacrifice of legal security and judicial independence is obviously an excessive cost.

Secondly, the submission of judicial decisions to the goal of material justice brings a considerable degree of arbitrariness, since it makes them dependent on the moral criterion of the judge, which, in addition, may change over time. All this increases the aforementioned legal insecurity, with disastrous consequences for the economy and the rule of law.


The judicial drift of the Spanish Justice Department does not enjoy a positive or negative normative assessment. Even if giving more weight to jurisprudence does not match our current judicial system, a gradual modification of the status quo to adapt it to the social, cultural and economic demands of the country would have to be welcomed. However, a reform of this dimension does not belong to the judges, but to Parliament. Only in this way can the independence of the three branches of the State be preserved and that legal security, essential for the stability and socioeconomic prosperity of this and any other country, be protected.

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