núm. 31 (2009)

Una medida del verdadero espíritu de lo clásico im- plica necesariamente de silencios. Igualmente, en la pintura, los maestros holandeses demostraron con empeño que el papel de la sombra era preci- samente hacer resaltar la luz con mayor intensidad. En el Derecho ocurre algo parecido. Son las la- gunas las que dibujan los contornos del orden jurídico, porque ellas permiten dar una imagen, “de manera indirecta”, del sistema normativo. Si se entiende bien el término de laguna no puede ser utilizado en Derecho más como una metáfo- ra. Etimológicamente, laguna (lacuna en latín), define a un pequeño lago, un repliegue de un terreno; por extensión, el término hace alusión a un espacio vacío. En Derecho cuando hablamos de laguna, nos referimos en sentido estricto a un estado inacabado-imperfecto (de no plenitud) del aparato normativo. Esta primera definición, que parece neutra en apariencia, descansa sobre el postulado de que puede existir un orden jurídico completo, un orden jurídico perfecto.

The migrations belong to the reality of the human being, among all the factors that generate it, there isglobalization, which economic base creates challenges nearly impossible for the poor countries, reasonwhy their habitants view themselves in the necessity of emigrating in search of work and resources inbenefit of their families, this could be very easy if the emigrants were welcomed in their arrival countries,with the same conditions as the rest of the habitants, it is outlined the family values as well as the social doctrine of the Church, for its importance in the formation of the human being as an honorable, emotionallystable person, as well as useful to society.

For a long time in Colombia is aware of the importance of imitation of rules and institutions in the evolutionof our legal system. Beyond general statements in this sense can be found in many manuals andtreatises on various branches of dDerecho,. loas iIn recent decades in the field of comparative law havebeen several studies concerning the phenomenon time and have discussion about the possibility that theDderecho not determined by the structures of society that produced and can be transplanted one place toanother. The purpose of this article is to present the debates that have arisen around this issue in terms oftransplantation, reception, influence, enforcement and adaptation in the legal field. It is also intended toreview the contributions of this debate and to advance some hypotheses about themselves, analyzing thephenomenon of transplantation standards within complex and diverse interactions between legal systems.

This article examines the global issues that arise in contemporary democratic systems, related to thetransformations that are undergoing the implementation of Private Law as a result of the incorporation ofconstitutional values to the rest of the law.

Throughout the text we will analyze the relationship between globalization, inter-American system of HumanRights and Democracy. Emphasis will be placed in the last decade of the twentieth century, when characterized by the implementation of the globalization process, which promoted the discourse of democracyand human rights, as being concomitant with neoliberal development. This displays the contractions thathave submitted product of this relationship.

The present article is a short analysis about the construction of de new social global movement from thespaces of World Social Forum (WSF) and the form in these different and multicultural movements hasbeen building news forms of knowledge, from the social action, that create controversy, but also from thetheory, front the absence of guaranty of human rights.The article proposes that the socials movements, judicial operator, the theorist and the professionalsconsider about the inconvenience of the use of the Theory of the Generations of the Humans Rights,because this vision isn’t gratuitous and has orient serious the division of the humans rights in categories:first, second, third, etc. This division has been incorporating in the majority of constitutionals texts and theconstitutionals courts has been accepting this theory how assessment indicator, giving effective custodyto any rights in damage of “the others rights”.The text proposes the consolidation of a new theory, the Generation of Vienna, based on the recovery ofthe right to the history and integrity, interdependence and unit of human rights laid down in Article 5 ofthe Declaration and Plan of Vienna Action signed by 171 states.

The political - constitutional phenomenon of the sovereignty, from its emergence, manifest in theoreticalconstructions as those of Bodino, up to its more recent treatments, reflects a drastic change of conceptionand functionality. A concept that originally was rigid and a conservative, changed into a elastic one andadapted to requirements that historically, they defy its beginnings to acquire completely parallel connotations.It is said from “flexible sovereignty “to what at present it has wanted to be understood by sovereignty,and as for penal jurisdiction, expresses as constitution of universal conditions of accomplishment of suchvalues as the justice and the repair of the victims. Certainly, if it is an obligation of the State to get penalfair processes its accomplishment is the most authentic auto affirmation of the sovereignty, in conformitywith the jurisprudential trends of the international organizations with judicial competitions.

Methodologically, the question arises on the basis of a preliminary observation: it is that the ratio betweenperception and perceived thing, which produces evidence that is necessary to analyze the causes andorigins. Along this road goes down this path Sse the need for an analysis of the reality of eest evidence, sothat being encontrándoseuentra staff is one thing clear and that by its very ontological structure is subjectand that it, in such condition subject is the basis by which it is possible the appropriation of things andmaking them his own, that such a relationship between subject and appropriated up to you, is real andnot merely theoretical formulation or ratio. This question is discussed about the things that belong to hissubject as constituting the universe of their rights, which may conflict with other subjects, it is necessaryto resolve conflict, because of remaining in conflict is not possible in the configuration of any social order.Resolving the conflict is to restore order by recognizing the relationship between the owner of dDerechoand things, and in this act of restitution dDerecho is called justice, which produces the first order of speciesbeing social and legal . Then he concludes that the blurring in the design, conceptualization, formulationor implementation of dDerecho becomes a distortion of justice, because the subject especiífico the humanact of justice it is precisely the things that are his people. Your rights.

For the positivism, it is enough that the system of rules is effective. For the non positivist Alexy it isn’tenough. It is necessary to find the conceptual link between Law and Moral, which is the one that justify therespect into the community. Tomás agrees with Alexy on that association. When an unfair system becomesa “juridical system” it wouldn’t admitted, unless if that system (tyranny) turning on to be manageable andthere was foreseen that, fighting against it, was done worse or replacing by more unfair other one. Theauthentic juridical system, as an armor of the political system, is that sustained in the moral exigency ofthe human nature, is an expression of the claims of the natural inclinations of the man.