The unacceptable terminological dispersion of the right to the legal judge

Abstract

The predetermined right of the ordinary judge is recognized in article 24 section two of the Spanish Constitution. The expression used to designate the aforementioned right is without a doubt complex. The main problem that arises from the elaborated expression is that other traditional rubrics have not been eliminated, on the contrary, it has given rise to a very diffused idea that suggests that every expression was adding a different meaning.
Hence, «Legal Judge» «Natural Judge», «Constitutional Judge», «Ordinary Judge» or «Ordinary Judge predetermined by the Law» have been frequent expressions that should be identified in history and in Comparative Law. It should be noted, without taking superfluous details into consideration, all these rubrics are equivalent in substantive matters, it is the undertone what hinders the scientific unity of the concept. In reality there is essential content of the law which deals with the need to establish by law the court that should hear about a specific matter in order to guarantee its independence, especially the executive power, avoiding a systematic problem from the past. This terminological and conceptual diversity, as well as the doctrinal scatteredness, make it necessary to find a unified expression which designates the right, it should remain simple in order to avoid misleading regarding its essential content. In short it is about correctly materializing from a terminological perspective the inherent desire, that has been present throughout history, that judicial jurisdiction not be manipulated to judge a court case.
In addition, this paper aims to study the historical precedents of every expression in order to outline the content that has been attributed to the right throughout time, discovering that some of these contents are to some extent casual and even arbitrary, evoking different conceptual realities without an authentic intent to do so. After this research that will be as complete as possible without incurring in unnecessary repetitions, the constitutional relevance of legal predetermination and its reasons are highlighted.
With this we try to finally locate a common denominator within the objectives of every historical legislator, simplifying the designated task of specifying the essential content of the right. Finally, a conclusion is offered where «legal judge» is the shortest, most complete, and accurate used to designate the right and include the essential content in the least controversial way possible.