The world has changed substantially in this last century.
Technology and science are launched wildly in the meadow of time and technological and cognitive processes and with them, man intends to advance to the limits of the search for eternal truth.
From praxis we see how change has also occurred in us and those of us who yesterday sought the ideal of society, today with more reflection and serenity we try to embark on the path that leads us to a society without limitations or frustrations and in which we do not torment the guilt of having been indifferent to the changes that the third millennium announces.
One of these changes relates the human person and the law, we believe that for their benefit, in the ratification that man is the subject of law par excellence and towards him all the advances that intelligence can bring to life in society come together. In this aspect, the dynamic and changing science of law, under the influence of the new contributions of modernity and progress, indicates with blinking slogans that the future that science and technical advances give us, look at the benefits of being human.
All organizations at the global level, such as sectoral or local, are open to waiting for the basis of progress to be raised in favor of Life, Integrity and respect for the Rights that are inalienable of the human person. To not understand this essential principle is to go against the logic of survival, in favor and utility of passing enjoyment, of the merely adjective of Being and of Life, of the temporal and not of the enduring.
Our Latin peoples have inherited and assumed the principles of the Western Christian Judaic world, imported from Europe five hundred years ago and, with them, an absolutely different way of life has arrived, with a cosmogonic vision that was not that of the indigenous peoples, close and attached to the earth, organizing with a new identity the places so ours and so own, giving them the shape and manner that the newcomers brought. From the separation of the King person, in King State, to the social pact devised by the politician and philosopher Thomas Hobbes, to the concept of slavery, as a way of expressing the relations of production, mainly agricultural.
The political organization theoretically founded based on the recognition that the sovereign gave up his powers in the State, and by virtue of them the latter could not only make, but also apply the Law, because if the depositary of the sovereign will gave this right exclusively to the supra individual entity, it was obvious that the sense of justice was redefined in the Law created by the State in exercise of this delegated right.
It is distant sound of the bells of bourgeois liberalism planned by Montesquieu, he gave in the development of the idea of this social pact, the concept of functions by which the State, in the exercise of these, applied one to administer, another to legislate and the last to give what was legislated to the same sovereign, without distinction of rulers and ruled. An extraordinary formula, which allowed people to find their public or private role in the confinement of powers and to be able to socially, politically and economically locate themselves in doing and doing pre-established by this order of things.
The role of the magistracy, greatly diminished in access to the origins of sovereignty, was gradually extinguishing its importance, and its participation was darkening, as the judges were mechanically marking the words of the Law dictated by another power, and thus, increasingly absent from reality, they ended up being ignored within the social concert, stripped of their dignity and today, in our country, classified as the worst of the services that the State gives to its sovereign: the people.
If this were not enough in the decline of the administration of the Law, the primary indications of independence and freedom of its members, indispensable for legal doctrinal competitiveness and for its evolution according to the demands of the new centuries, was crushed and silenced by the overwhelming exercise of the other powers, where the political and economic force was making its way with increasing arrogance, until it became the administrators of the Law, mere men without any capacity to exert levels of pressure, not even with the force of talent, of those who warned the source of the evils and the causes of errors in the proposal to deliver the administration of the legal norm.
One of the worst convergences in this regard has been expressed as a way to provide legal security based on the assets of the people who make up the sovereign collective. However, it has been noted that in the definition there is a huge conceptual black hole, because, in the greatest importance of legal assets is property, to the detriment of the Life, Integrity and Dignity of people.
There is, to put it in some way, a huge and increasingly forceful imbalance, which leaves its mark on our society, marking the administrators of the Law, as subjects at the service of the eventual or temporary political or factual powers, and not as really It should be, be at the service of man and his essential rights.
The history of the application of the Law in Chile, is a Kafkaesque and perverse history and any journalist interested in the history of justice, can reach the knowledge of the facts that demonstrate the contempt for the essential legal assets of the people in relation to his life, integrity and dignity, more than in relation to the legal depredation of his material assets. In this sense, the state and all of society are in historical debt. But also in a position to remedy this terrible omission.
This opportunity for the judges cannot be lost by appreciating the cold and useless voice of the Law, to the detriment of the Principles and Values that it entails in its formation and its ends. Hence, guidance should be sought mainly in the Political Constitution, which contains the table of rights and duties of citizens and the guarantees it establishes in favor of these; in the Principles of Law emanating from this Constitution and in the rulings and judgments of the highest courts that interpret and apply its Principles to the specific case.
Principles and values of legal orientation.
The sovereign who has given life to the State by nurturing it with his own faculties, expects a new appreciation of the Law, in which it looks more at the person and the essential rights than at their material goods, since in the order of precedence it cannot be placed in the same place a real property with Life, or a movable property with physical or mental integrity. Even less with personal or family dignity. Many will feel a deep dislike for this idea, but it is not a question of establishing a contrived adaptation project and the product of the will.
It is about rediscovering the world of interpretation, emphasizing what is really important in the development of the human being, that is, man, who, in the Ortega y Gasset model, is this and its social, economic and political circumstances., of progress, culture and everything that is natural and proper to it.
All of this is found in the Principles and Values set forth in the Constitutional Charter, dynamic in matters of essential rights and open to new discoveries that allow human beings to fully develop and protect their highest and most expensive legal assets: Life, Integrity and Dignity.
If the purposes of the State are the defense of essential rights and the common good, could a contract, normative provision, a permitted action, a resolution of any nature and of any organ, go against the purposes of the latter? Obviously not, because it is not possible to accept a shock of so much legal violence. For this same reason, the interpretation of laws and contracts must also fully comply with the guarantees that the constitution establishes, and do not present any doubt in asserting these reasons of constitutional principles, against any distortion of harmony that frames the task of the nation, based on the remarkably clear fact that conflict situations are never identical and consequently,Each particular case deserves its own attention under the prism of constitutional principles and values.
Moral harassment and constitutional principles
It is a fact that the new labor procedure delivers the knowledge and ruling of the protection of fundamental rights to the Labor Courts in Oral Trial. However, there is a judicial recognition that currently the protection and reparation of damages caused by moral harassment, corresponds to the Labor Courts, which know and rule in ordinary procedure. In addition, from the well-known judgment of the First Court of Valdivia, which sanctions moral harassment whose protection was deduced by way of the Protection appeal, recently a ruling by the First Court of Conception, ruled on a similar appeal, but denying The latter has held that the Labor Courts are competent to hear and rule on mobbing and the corresponding compensation. This represents a great step forward, because in our country,Moral harassment at work is a scourge that affects at least a third of the workers, which is the same as pointing out close to two million people.
Moral harassment at work is a mode of aggression and violence that has its own characteristics, so misleading that it has been said that it is the perfect crime, since the psychopath or stalker can be a charming and intelligent person, but at the same time shrewd, cunning and cunning time, qualities that allow her crime to leave no trace.
Moral harassment directly attacks two of the most essential fundamental rights of the person of the worker: Life and Integrity and, personal and family Dignity.
His test is a real ordeal for the victim, because the harasser always acts on his terrain and dominates the situation. However, the imprint remains on the victim himself and is irrefutable, since the moral damage is perfectly appreciable by third parties, especially cardiovascular physicians, psychiatrists or psychologists. In this period it is possible to ask for the maximum attention of the judge, because, if this requires the maximization of evidence, the itching of the total evidence will allow the crime to go unpunished.
Consequently, the background information must be directed to guide the judge in the way, the form, the degree of perversion and hypocrisy in which the harasser acts, and the means that he uses to avoid leaving evidence, which notably, as expressed, can be seen in the victim. This is the confrontation of the judge's ability to link with constitutional principles and values, and the demands of the civil process, absolutely ineffective for the assessment of an attack on the aforementioned constitutional guarantees.
The world has changed in recent centuries. Also man and his socially and legally recognized rights. It is required, then, that the science of law adapt to these changes and, necessarily with it, the judges.
