Judge

Panel of judges of the International Court of Justice, dressed in toga.

The judge is the person who resolves a controversy or who decides the fate of a defendant, taking into account the evidence or evidence presented in a trial, administering justice. It is convenient to distinguish the judge from the court, which is not legally a human being, but a judicial body made up of natural persons, who can rotate without violating this guarantee.

They are usually considered public employees or officials, although this will depend on the specific country, they are paid by the State (without prejudice to the figure of arbitrator judges and justices of the peace), and make up the so-called Judiciary. In general, they are characterized by their autonomy, independence and immobility, without being able to be removed from their posts except for constitutionally or legally established causes. Likewise, they are responsible for their ministerial acts, civilly and criminally.

Although they enjoy independence in their actions, their resolutions are usually reviewable by their superiors, through the so-called judicial remedies, and they can be confirmed, modified or revoked.

The conception of judge, finds rational justification in the use by the respective state entity, of the experience, knowledge, skill, capacity, sensitivity and identity acquired in the performance of the work, as well as the development of the innate virtue to impart justice as a product of the exercise of the function, of the best judges that the Judiciary has, with the purpose that the provision of the public service of justice to the citizenry, is in the hands of the most qualified and experienced judges of each State.

Subjection of the judge to the Law

The law is a complex system of sequences of norms and legal acts established in advance. However, the enforcement bodies decide the meaning of the standard that is applied. The judges are in charge of the application of the law and these norms. That is why the legal order is the framework of legal transformations, not something finished or at rest, and this produces a series of paradoxes since legal creation is constant and judges generate jurisprudence. The interpretive process generates a statement that in turn becomes a legal norm.

In the continental European model, the figure of the Judge is very different from that of the American model, in which the Roussian idea of Law generated a legal system that binds judges to the law. In the European model -for example, the Spanish one-, judges have a greater margin of discretion in legal interpretation.

In the United States, judges base their decisions on the Constitution rather than laws or other legal rules, which gives them great political power. If the laws do not seem constitutional to them, they do not apply them.

However, in our judicial model (European and Latin American) all public powers are subject to the law. There is a subjection of the judge to the legislator (legislative function of the legislative power) and a subordination of the J.v.c

• The judge is not authorized to establish legal rules.
• The judge ' s decisions are based on legal rules that come from an authorized source.
• The judge is presumed to know the law and other legal norms.
• The judge cannot reject the application of a law.

However, the function of the Judge is not something merely mechanical, the traditional vision of the Judge and the basic requirement of his submission to the law does not mean that the Judge is not a lawyer, it does not mean the sterilization of his professionalism and his ideals of justice. The interpretation of the Law implies an important evaluative function, not only technical, since the function of the Judge also implies a control of the other powers of the State as long as the Law is the consequence of a democracy and the Judge does not become a power politician.

The identification of political power with impunity and corruption occurs when the transitional regimes towards democracy preserve traits of the totalitarian political culture in which judicial independence is uncertain, as happened in Nazi Germany. The risk, in European and Latin American countries that have lived through dictatorial regimes, is that judges always rule in favor of the executive branch in power.

A person who is charged or prosecuted for a crime may not serve as a judge until they are dismissed or acquitted, neither can a person who has been convicted of an intentional crime until they have been rehabilitated, nor can those who are deprived of their civic rights due to physical or mental impediments. Not all judges are in charge of a court. A judge can dedicate himself professionally to the exercise of jurisdiction or fulfill administrative or governmental functions, such as the one who works in the Civil Registry or the one who works, for example in Spain, in the General Council of the Judiciary. In Spain, justices of the peace exercise jurisdictional power but they do not have a professional nature like the others, nor is their position irremovable.

Types of courts

The power of the judge is conferred by the State, through various procedures, granted, according to the country and fundamentally according to the legal tradition that it understands.

In legal systems with civil law roots (prevailing in much of Europe and Latin America), known as continental law, judges are usually appointed by the administrative authorities that make up the judicial branch, including hierarchical superiors (often after an exam or contest); while in some States of the United States (Federal State in which a legal system of Anglo-Saxon roots prevails), they are elected. These main differences between one system and another, recognize their origin in the existence of legal traditions of heterogeneous origin.

Types of judges

Mainly, five legal systems can be distinguished: continental law, Common Law, socialist law, religious law and mixed or hybrid law, systems that continue to this day. Its concept of justice and its interpretation is not the same, since as occurs in Anglo-Saxon Law, the search for that ideal is carried out according to the exegetical rigor of judicial precedent, which has ossified Anglo-Saxon Law, which differs from Law continental, where the interpretation of the Law, based on the constitutional principles of each country, imbued with international agreements and treaties, constitutes the path for the search for just solutions, in specific cases.

Although the function of judges has the same origin in each of these systems, their evolution is very different. In the Common Law we could situate the judge in the role of «judicial creator», which was diminished with the little mobility that the system of precedents gives him, while in continental law the judge was assigned to a rather interpretative role.

Some types of judge are the following:

Based on your position in the judicial system

• Judge or supreme judgewhich is any of the judges who are in the last degree of judicial career. They usually make up the respective High Court or Supreme Court.
• Regular judge It is everyone who exercises his jurisdiction in his own right and is established by permanent office to administer justice at a certain point.
• Conventional judge by the same parties to understand in a certain business, which does not have the public office of judge, being only a particular, with the power, under the fulfillment of certain requirements, to solve a particular and concrete problem.

Regarding the filing of the appeal or appeal

• Senior Judge also called Judge ad quem which is the one who has the authority to judge cases on appeal and to hear complaints against the lower ones.
• Judge a quothe one whose sentence or order is appealed to a higher instance.

In relation to your competition

• Competent judge is the one who has competence to know about a business or business.
• Incompetent judge is the one who has no competence to know about the business that is dealt with by reason of the person, matter or place or any other.
• Privileged judge is the one who has the power to know of a case, with the inhibition or exclusion of the ordinary that should know it; or the one who exercises some privileged jurisdiction in order to certain persons or matters.
• Promiscuous judge is the one who knows all kinds of matters, within his territorial jurisdiction, with some caveats that concern each jurisdiction.

Historical evolution of the function of the judge

Image of an English judge with the wig feature.

The judges in Rome, before the imperial period, were not experts in law, they had a very limited power, and they had to be advised by jurisconsults. During the imperial period its main function was the application of the will of the emperor. It was in medieval and pre-revolutionary times that his power was less limited and his performance was similar to that of current English judges.

However, with the revolutions, the construction of States, national sovereignties and the separation of powers, the judicial function was categorically restricted, judges could no longer make the law, rejecting the doctrine of "stare decision". Thus, the judge of continental law was a kind of expert employee (a mere public employee), whose function was simply to find the correct legislative provision. However, since the creation of the Constitutional Courts, devised by Kelsen, the interpretative task has led the law of constitutional tradition to truly liberal spheres, in which justice is available to all.

While in the Common Law the judge applies deductive and inductive reasoning to give a resolution, based on the laws; precedents or derived from natural law; that is to say, supported by self-evident truths and that do not transgress the established laws, unless these laws are demonstrated deductively or inductively that they are invalid; that being the case, they will be discarded or modified. That, however, is limited, since the judicial precedent became a source that limits the creative power of the judge.

Although there are similarities between both classes of judges, in their functions as such it is possible to appreciate a vast difference, which for historical reasons has originated. The profound change that the law underwent, after the legal unit that all of Europe shared, Roman Law, derives from the current legal systems, so different, but at the same time analogous to each other; and in this same transformation, the judges took different paths, decisively marking the interpretive and creative roles that are executed in these systems.

Types of judges

Starting with the already outdated denominations, we will say that the following have been known among us:

• Judge Pesquisitor was called the commission judge who once appointed the higher courts, such as the Royal Council, vestigeries and hearings, already only to find out certain crimes and to discover their perpetrators also to punish them, with the inhibition of ordinary justice.
• Labour JudgeIn any work process, judges must avoid the fact that the inequality between the parties that affect the development or outcome of the process, for whose effect they seek to achieve the actual equality of the parties, privilege the substance on the form, interpret the procedural requirements and budgets in a favourable sense to the continuity of the process, observe due process, jurisdictional guardianship and the principle of reasonableness. In particular, they accentuate these duties against the pregnant mother, the minor and the disabled.
• Judge avenidor or of compromise is in the language of the Partidas, the arbitrator and judge.
• Magistrate was once called the judge who exercised any special or privileged jurisdiction.
• Judge in curia any of the six Spanish apostolic judges was called to whom the papal nuncio in Madrid had to submit the knowledge of the cases that came on appeal to his court.
• Survey judge he was the minister of Aragon, who made inquisition or inquiry against the officials and dependents of the administration of justice.
• Senior Judge of Vizcaya He was one of the judges of the Chancellery of Valladolid, who formed a court on his own and knew in the second instance of the cases against Vizcaínos who went on appeal from the governess and justices of Vizcaya and who then passed to the degree of magazines the room also entitled Mayor de Vizcaya in the same chancillería.
• Official Judge of Layer and Sword was called to each of the ministers of the layer and sword that were at the hearing of the Contracting to Indias in Cadiz, when this tribunal existed.
• Judge of residence He was the delegate judge who, when the corrections, mayors and others administering justice were served, was sent by the Supreme Council to resume the ordinary jurisdiction and to examine the conduct of such officials, hearing complaints or taking news and reports.
• Pediatric judge the Romans called the advisors or advisors of the pretor, because they sat in lower banks and quasi wi pedes prætoris to the judges delegates and contributors and to those who had no authority but to know of minor cases.
• Competition judge the ministers of each of the supreme councils or tribunals that the king appointed every year to decide on the plurality of votes the competences formed by the different jurisdictions.
• Conservative Judge was called the judges appointed to know in the first instance of the business of transient foreigners.