Arraigo y desarraigo del constitucionalismo colombiano La constitución débil

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]