Lisa Hilbink. “Politicising Law to Liberalise Politics: Anti-Francoist Judges and Prosecutors in Spain’s Democratic Transition.” In Fighting for Political Freedom: Comparative Studies of the Legal Complex and Political Liberalism. Edited by Terence C. Halliday, Lucien Karpik, and Malcolm M. Feeley, pp. 403-438, Oxford, U.K: Hart Publishing, 2007.

This chapter examines the role of anti-Francoist judges and prosecutors during Spain’s transition from authoritarian rule to democracy, situating the legal profession within a broader struggle over political liberalism. For much of Spain’s modern history, law functioned primarily as an instrument of executive power rather than as a safeguard of constitutional rights. Even where judicial independence formally existed, courts operated in political subordination, particularly in cases touching on regime interests, leaving citizens without meaningful recourse against state abuses.

The chapter also highlights how segments of the judiciary and prosecutorial corps became sites of internal dissent during the late Franco period and democratic transition. Anti-regime legal actors challenged the tradition of judicial servility and worked to reorient the legal system toward constitutionalism, rights protection, and limited government. In a context where democratic norms were weak and vulnerable, these legal professionals played a critical role in redefining the institutional identity of the courts, from instruments of authoritarian control to pillars of constitutional governance.

Framed within backsliding democracies more broadly, the chapter illustrates how members of the legal complex can either entrench authoritarian practices or help reconstruct the rule of law during moments of regime change. The Spanish case underscores the importance of internal professional resistance and institutional reform in transforming a politically subordinated judiciary into an autonomous defender of political liberalism.