Màrius Carol – Pedro Madueño, CC BY-SA 4.0, via Wikimedia Commons
Màrius Carol, former Editor and Editorial Adviser of the newspaper La Vanguardia, draws on the arguments of Enrique Morera, a renowned jurist, founder and Non-Executive Chairman of the law firm Balaguer-Morera & Asociados Abogados (BM&A), and corresponding member of the Royal European Academy of Doctors (READ), in his regular opinion column in the publication to analyse the state of the Spanish judiciary. The journalist specifically cites the speech with which Morera joined the Royal Corporation in December 2022, “The Requirement of Independence and Impartiality in Law: Its Comparison with Anthropology and Cognitive Biases”, which has established itself as a leading reference on the subject. In his work, the new member addressed the evolution throughout history and across different legal traditions of two key concepts in law: impartiality and independence.
“A bias is an inclination, preference or systematic error that prevents sound judgement or steers it in a particular direction. So-called cognitive biases are mental shortcuts taken by the brain that can lead us into error or injustice. The lawyer Enrique Morera devoted his admission lecture at the Royal European Academy of Doctors to the cognitive biases that threaten the impartiality of judges and may lead to ill-considered rulings. This is not a minor issue, but a crucial one in modern democracies, where it is becoming increasingly difficult to preserve the independence of the courts in the face of attempts by some to mend the failings of politics,” Carol begins his argument.
A member of the Barcelona Arbitration Court and lecturer on the Master of Business Administration (MBA) programme at the IESE–University of Navarra business school, the academic considered during his admission ceremony how these concepts of impartiality and independence should be understood in relation to the circumstances that may influence the state of mind of the judge or court called upon to resolve a dispute. “For the most part, legal doctrine and case law hold that the requirement of independence is limited to factual circumstances affecting the individual and is therefore objective.
Mr. Enrique Morera
“Impartiality, by contrast, refers to the mental state of the decision-maker or issuer in relation to the parties concerned by their judgement or to its subject matter. It may therefore be said that impartiality refers to the absence of subjective conditions affecting the individual that might compromise their fairness and integrity. However, although it may hypothetically be considered that a situation of dependence does not in itself determine partiality, the fact is that the law does not regard it in this way,” he explained.
For Morera, reasonable doubt regarding impartiality based on appearances is gradually permeating the Spanish judiciary, which had historically upheld without qualification the rigour and professionalism of judges and courts. This is becoming increasingly evident through the acceptance of certain applications for recusal. “There is no doubt that recent years have witnessed a slow but continuous evolution seeking to overcome the exasperating positivist rigidity that prevents an appropriate interpretation of the rules and obstructs progress in safeguarding what constitutes the most fundamental of rights. Having a judge free from any suspicion of a lack of impartiality or independence is the first prerequisite for obtaining effective judicial protection, as expressly enshrined in the Constitution,” he added.
