núm. 19 (2015): revista via iuris 19 (julio - diciembre)

This article presents the idea that legal language is a representative feature of culture and social relations, as it is through language and with language that concepts, norms, and behaviors can be expressed. In other words, it is a condition that causes relationships, actions, and reactions. In this sense, the procedures stemming from the metodeutics of the American Semiotics Theory, commonly known as Peircean Semiotics, are the ones upon which this proposal is grounded in order to understand the process of contained semiosis in the aforementioned theory, and to achieve this understanding it searches for the philosophical model of pragmatism in order to carry out its analysis. Thus, pragmatics becomes the work approach here because, conceived as a dimension of semiotics, it is part of the Peircean Theory of Semiotics, whose sign is studied according to its interpreters. In this case, it takes the analysis of Tercio Sampaio Ferraz Jr.’s Juridical Norm Theory as subject. On the other hand, it goes further, highlighting the study of law through language as expressed by Norberto Bobbio in regards to its prescriptive function. Once this stage is covered, the sign and the social-cultural reality are analyzed, whose “do-do” configuration (constant in the prescriptive function) is always permeated by the “say-do” modality of law as communicative act. This aims for the interpreter of the juridical norm to be able to “know-do”, as language, in this case the juridical one, is the place of symbolic exchanges which allow the communication between subjects and that generates social relations or the interruption, modification, or change of behaviors whenever it is necessary.

The illegal armed groups in Colombia (guerrilla, paramilitary, others) with their violent actions against the civil population, the Military forces, and the Public force, led to the expedition of an internal legislation in concordance with the International Humanitarian Law. In the face of such situation, all directly and indirectly involved parties in this domestic armed conflict must be protected by law in a way that their constitutional rights are backed up, in an effort to grant equally distributed justice for all. Such an intention has not been easily achieved when looking back to the historical experience of the last 50 years of national violence, where the struggle for power and the clash for interests have been strengthened both in the light of the law and in reality, a reality marked by social economic and political inequality. In qualitative research, reflection is a key element for the researcher, something to resort to at any conscious moment. Reflection allows the researcher to be in contact with the analyzed subjects, with the informants, and with the surrounding social world which limits the specificity of the research. From a hermeneutical reflection, this is an attempt to contribute with the debate that may critically and humanly allow the overcoming of the conflict afflicting Colombia. The article closes with a reference to the atrocity and horror of the facts, illustrated by the Patascoy case, and with a claim for a substantial change for the benefit of the entire Colombian people, where the conflict could accept the coexistence of differences.

This article is the outcome of the research carried out during the author’s PhD in History, National University of Colombia. In it, the instruments of Christianization applied to the indigenous population during colonial times are explored and analyzed, as well as the discursive use of fear by the evangelizers. The importance of the Christianization method is discussed; the way in which, by means of catechism lessons and the synodal constitutions of the first archbishops in Santafé, indications for the conversion of the indigenous peoplewere made. Fear is implicitly present, as such instruments communicate. With that goal in mind, a documental and descriptive methodology is applied, allowing a contextualization in time and space for this Christianization and pedagogy of fear. In the same fashion, the role of the Church and the obstacles preventing the Christianization of the indigenous inhabitants of Santafé and Tunja provinces are established. From these, the consequences of the indigenous population Christianization in the already mentioned provinces during the early colonial period can be evidenced; likewise, it can be seen how fear operated in two horizons: the first, a Christian supernatural one; the second, the indirect fear produced by punitive law instituted within the instruments used as core tools for the evangelizing enterprise.

This article presents a reflection concerning the understanding of sexual violence within the context of the Colombian armed conflict. It proposes an analysis not only as an expression of gender-biased violence but as structural racism as well in the case of events against African Colombian women which took place in historically racialized and marginalized territories, as the Chocó Department. This reflection stems from the research Violencia sexual en el conflicto armado: los rostros afro de la reparación. Caso: Asociación de Mujeres Afro por la Paz Afromupaz [Sexual Violence in the Armed Conflict: The Afro Faces of Redress. Case: Afro Women for Peace Association, Afromupaz], and intends to contribute to the drawing up of proposals concerning the individual and collective redress for damages caused to Afromupaz’ African Colombian women involving sexual violence and in the context of the Colombian armed conflict. This proposal is also rooted in the analysis of sexual violence against the African Colombian women of Afromupaz within the framework of the armed conflict in the Chocó Department, from a complex reading of the context in which such violent events took place. The starting point is the analysis of the construction of the colonial discourse concerning “race” and “black women” and its impact on the configuration of a social, sexual, and racial hierarchy in Colombia; secondly, the social dynamics in the Chocó Department, the situation of the African Colombian population living there, and the local dynamics of the armed conflict as an expression of structural violence are reviewed; and, finally, it is proposed that, within this more complex context, sexual violence can be understood not only as an expression of gender based violence but as one of structural racism, one which plays a decisive role in the configuration and development of the armed conflict, in the performance of armed actors, and in the differentiated impact it can have on black population, women especially.

This article aims to propose a reflection on the representations of masculinity circulating in Bogotá during the first half of the 20th century and its articulation with the national project and the model for family intended to be imposed. In that sense, the study addresses the research question, which were the representations of masculinity circulating in Bogotá during the first half of the 20th century and their influence on family and nation? To answer it, a first objective is to approach the analysis of the concept of masculinities, highlighting that this term was coined after the studied period of time, but that nevertheless is useful as an element of analysis in order to understand the different gender roles society assigns in each era. A second objective is to review the State-Nation project intended to be developed since the 19th century and the revitalization such a project had during the first half of the 20th century; this with the goal of a consolidation of a national identity. The third objective addresses the family typologies and their legal representations, developed from rites as the Catholic and civil marriage-institutions that, in addition, were mandatory, hegemonic, hetero centered, and andro-centered. In order to fulfill these objectives, a documental research methodology was implemented, trawling through different written documents available in archives and libraries in the city. Secondly, the information was systematized using an indexing technique, where a specific nomenclature for the analysis and assessing of texts was proposed. Then, the written version of the research started to be developed, one that allowed important findings when examining how these different elements were articulated, reproducing a discourse of gender differentiation and some masculine roles associated with the ideas of strength, heroism, and virility, where these features had to represent, furthermore, the ideal of the nation.

The effect of the suspension of the work contract on the legal incentive payment for services which must be paid to all hired workers in Colombia has been subjected to endless discussions and multiple interpretations. This is so because labor legislation, whether by omission or on purpose, does not mention what happens with the additional payment for services during the suspension of the employment contract. But, concerning all other legal benefits, those were indeed taken into account. Being this the situation, and in the face of a legal shortcoming, the Colombian business sector has been stumbling in uncertainty regarding this issue. This leads to a wrong application of the normative and directly affects workers’ rights. This article is an updated research, where heuristics and legal hermeneutics have been taken as methodological ground. By means of collection and analysis of legal precedents from the Supreme Court of Justice and the Constitutional Court, the pronouncements of public bodies of control, and the doctrine and practice concerning this topic, the intention is – following adequate legal principles – to adopt a stance on this current legal problem in the light of Colombian law, to determine the affectation of the legal incentive payment for services when the employment contract has been suspended. In this article, the reader may find the necessary arguments in order to determine the absence of any effect of the suspension of the work contract on the payment of the legal incentive for services, considering legal strictness and the nature of such social benefit, and in the defense of the rights of Colombian labor force.

This research intends to analyze the institutional and procedural expediency of a guardianship and protection judge of the “Dworkinian Hercules” type for guaranteeing the social rights in the Colombian Social State of Law. Being so, the Colombian juridical system implies a complex relationship between legal and constitutional juridical norms. In particular, when judges decide over cases, the possibility of obeying legal imperatives (Art. 230, Colombian Political Constitution) and obeying constitutional principles (Art. 4, 93, and 94, Colombian Political Constitution) can be seen in the Constitution as a demand for democracy, which in its substantial conception requires of normative and material conditions built on the foundation of the existence of autonomy, an essential core of human dignity. The issue becomes more relevant when concerning cases of guardianship and protection, as this type of legal action has transformed into the mechanism for the protection, stabilization, and judicial guarantee of violated fundamental and social rights. In Colombia, this has meant, for the most part, the breaking of the independence and balance of the public powers. Tyrant judges, judges generating law and public policies out of thin air, legislator judges, are some adjectives, among many, with which the judicial intervention looking for guaranteeing fundamental social rights is described.

The transformation of a nation conceived as a juridical-political organization at any of its self-constitutive levels into a social and democratic State subjected to the rule of law imposes, prima facie, the fulfilment of positive duties (jurisdictional duties) by the State itself (through its agents). These duties, “going beyond” the “borderlines” delimiting the configuration of behavioral scopes which are merely organizational (those based on the application of the neminem laede Latin principle), are directed towards the materialization of positive actions striving for the safe conduct and/or protection of fundamental rights and principles understood as “optimization orders”. Both can be affected by a lack of timely and effective intervention from those specially appointed by law. Such special “pre-typical” duty is born, then, from the normative configuration of “other” juridical spheres different from the criminal law; it is rooted in civil, business, or administrative obligations with a clear origin in the political constitution of the State of law and in the legislative order developing such postulates, lege ferenda, and acquires special connotation in the configuration of the State goals. For the specific dogmatic category of duty infringement offenses, the positive behavior function of the liable special agent considers him/her as a non-liable author, in a “subject” of the causal event who does not naturally perform the behavior described for this typology, with no resort to the ontological criteria underlying the central authorship of the criminal event but to the a priori category of the pre juridical conceived duty.