SÍNTESIS DE LAS CONCEPCIONES HISTÓRICAS DEL PROCESO CIVIL

Abstract

Th is paper provides an overview of the impact on the liberal conception of procedure, which emerged in the nineteenth century, of publicist historical conceptions that constituted the communist and fascist civil procedures, with the aim of learning more about history. It transpires that one of the essential elements in determining the ideological basis of a code of civil procedure, such as that concerning the powers of the judge and parties, ends up becoming something supposedly technical, something subject to the opportunity of the legislature. Th e issue, of course, is not simply whether or not the powers of the judge are increased. What really matters is what role the judge exercises through civil procedure. So, the debate is distorted when it is remembered that in the last third of the twentieth century judges’ powers have increased in the codes of countries where the political regime is clearly not authoritarian. It is entirely possible, without heeding an authoritarian ideology, to debate the regulation of a code regarding judges’ powers - though this does not mean that at other times the increase in judiciary powers is necessarily an expression of something deeper referring to the
judicial function. If the attempt to make technical what is political is surprising, what is most striking is that when one tries to call a spade a spade - i.e. when one draws attention to the fact that regarding judges’ powers, and the evidence he/she calls for, matters are generally based on the ideological conception of relations between the state and the individual - the one charged is the one who is said to be politicizing the issue.