| dc.description.abstract | Colombia is the land of law and legality, but it is not the land of normative
hierarchy, nor of stable constitutions. It governs a legal system fed by sources of
law, varied and confusing, marked by the strong influence of the judges. We have
a rigid Constitution and a distinction of powers, but only in external forms. Our
Constitution dates from 1991 and has already received 56 reforms in the short
span of twenty-nine years, which denotes its weak and unstable feature, a feature
that is confirmed by any look back at our local constitutional history. This insecure
constitutionalism has a behavior whose most visible and ‘chaotic’ aspects we set
out to describe; and it is the consequence of historical variables that force us to
escape from the framework of historical propaganda that affirms that the zero
hour of our past as a nation - and of our constitutional law - marks 6 o'clock in the
afternoon of July 20, 1810 (Declaration of Independence). If we admit the
undeniable connections of our legal system with Indian legislation, which
governed Hispanic America for three hundred years, and with medieval Castilian
law, which connects us to Roman law via the Siete Partidas (and not only to
through the Napoleonic Code), we will get good reasons that help to explain the
'weakness' of our constitutionalism, which is our goal. In tracing these
connections, we discovered, for example, that one facet of our system of control
of the constitutionality of laws, the exception of unconstitutionality (our 'fuzzy
control') is a resounding facsimile of the ecclesiastical dispensation, which has
its roots in the “siete partidas” and in the “Decreto de Graziano”. It would be
profitable for further research to consolidate this path; but a void would have
remained if, adding ourselves to the list of heirs to the tradition of Greek thought
and Roman law, we are not clear about the basic conditions of a legal system of
the Western legal tradition (we prefer to speak of the Indo-European tradition),
so to be able to compare and know and speak of "chaos." Three suggestive
normative models help us to understand these basic conditions: Laws of Manu,
Homer's Odyssey and the XII Tables, and they help us to compare ourselves
through the historical combat between the government of men versus the
government of laws. We have frankly superstitious ideas about how the contents
of this Indo-European tradition reached Latin America and Colombia, which
prevent us from understanding that there is a latent battle of principles in the
underground of our legal system, which has not yet been resolved.
Understanding that struggle of implicit and hidden contradictions, clarifying the
antagonism of Indian and modern principles in our legal system helps to explain
why we inexorably modify, every year, our fickle and vacillating Constitution, and
to understand why our insecure constitutionalism does not take root, and they
wander its rules in an incessant spirit of provisionality and transience. [edited by author] | it_IT |
