Influence of antiformalism on the Mexican legal system: a brief comparison with the Colombian case
Introduction
This text is born from my passion to investigate in an area that I had previously investigated, namely, legal antiformalism and its influence on Colombian law, however in my new condition as a law student in a foreign country, in this case Mexico I have not been able to put aside my passion for the subject. In what I have been living in the United Mexican States and studying its legal system, I have been interested in the anti-formal trend, its development and acceptance in the Mexican State.
This text, which I hope is only the beginning of a deeper investigation, is only a brief outline of a broad topic that cannot be addressed in so few lines. However, and much to my regret, I found it difficult to find only a few documents that address the issue in question, that is, how Mexican law has been transformed with the heyday of the anti-formalist positions reached in Latin America around the 1990s, therefore I am going to approach with greater emphasis the Colombian case, which is the one that is best documented.
1. Antecedents of antiformalism in Latin America
The antiformalism or better known in Latin America as legal realism includes all the movements or tendencies of iusfilosófico thought, that react to the theses of the legal formalism and that are born as a result of the crisis in which the nineteenth-century theoretical positivism enters (Timm, 2010. p. 2) Kelsenian-style positivism towards the end of the 1940s, after the Second World War.
However, anti-formalism should not only be understood as legal realism, this is just one of the anti-formal movements, which in general can be summarized in three, given its importance for philosophy and the theory of law: the school of free scientific research, the free law movement and the legal realism of the United States. The clear identification of antiformalism with legal realism in our Latin countries - be it in Colombia, Mexico or Argentina - was due, according to Pérez (2011. p. 84) to the late reception in Latin America of the anti-formal currents, in addition to the fact that the movement that had the greatest reception was American legal realism.
In order to speak of antiformalism, it is necessary, first of all, to know what formalism means, as a legal formalism, as well as iuspositivism, since it is these two movements that cause the opposite reaction to the theses and ideas in force in the right up to the post-war period which embodies the entire anti-formalist current.
Formalism, in a broad sense, refers to the jurist's neglect of both the social and the evaluative, focusing only on the norm (Timm, 2010. p. 2). Legal formalism, says Timm (2010. p. 2) is a way of doing legal theory, in which according to Bobbio (quoted in Timm, 2010. p. 2) “law is presented as a (generally constant) form with respect to the content (generally variable) ”, that is to say that the law is conceived totally removed from the social content, from the social reality, to prefer instead the literal nature of the norm.
The main formalist influence in Latin America was held by the French School of Exegesis. Without claiming to demerit the German Formalism, also called Jurisprudence of the concepts and neither to the North American Formalism based on the case method, it is this current that was most welcomed in almost all Latin American countries. All the enlightened and rationalist ideas of the French Revolution came to Latin America that motivated the independence struggles of our countries, so it is not unusual for the civil codes of countries like Colombia and Mexico, among others, to be based on the Napoleonic Civil Code of 1804, maximum work of the Exegetical School.
The exegetical school is mainly characterized by its marked legocentrism, according to this, the entire legal system must revolve around the law issued by an almost omnipotent legislator before whom it is not allowed to dissent:
"The rational legislator representing the nation creates laws that will be the only legitimate authority, that have a value in themselves, that only by virtue of them can rights and freedoms be limited and that they are for everyone, thanks to their generality and abstraction (classical formal equality) ”(Timm, 2010. p. 2)
Faced with such a conception of law, the judge or judicial operator is totally subject to the rule of law, as can be seen in the constitutions of both the United Mexican States and Colombia, which read:
"Article 230: The judges, in their orders, are only subject to the rule of law.
Equity, jurisprudence, general principles of law and doctrine are auxiliary criteria of judicial activity ”. (Political Constitution of the Republic of Colombia, 1991)
"Article 133: This Constitution, the laws of the Congress of the Union that emanate from it and all the Treaties that are in accordance with it, celebrated and that are celebrated by the President of the Republic, with the approval of the Senate, shall be the Law Supreme of the entire Union. The judges of each State will comply with said Constitution, laws and treaties, despite the provisions to the contrary that may exist in the Constitutions or laws of the States ”(Political Constitution of the United Mexican States, 1917. Reformed 1934).
However, a student of the Philosophy and Theory of Colombian nationality law, has identified a very interesting phenomenon both in iusfilosofía y iusteoría and in legal praxis. In his Impure Theory of Law, Diego López Medina (2011. p. 34) argues that in Latin American countries a phenomenon that he calls the distortion or transmutation of Transnational Theories or Foreign Theories of law that give rise to local theories is presented idiosyncratic. This is how López identifies a period in the history of Latin American and especially Colombian legal thought, denominated as classicism or "classical formalism" which is a mixture of pre-Kelsenian French and German influences, more specifically, a mixture between the school of exegesis French and German conceptualism.These two schools of thought are conceptually opposed, however, in the Colombian legal environment, they will not be.
Originally, the two schools have different approaches to the need, or not, for the codification of civil law, of course one of them affirmed such a need, while the other denied it. But in the Colombian context of the early twentieth century, as well as in many of the Latin American countries, these two schools offer elements for the interpretation of the code, that is, they both take for granted the need for codification. Although, in the beginning, classicism was not seen as a theory of law, but as a way of interpreting and applying the Civil Code, then, over time, it became, first, the only way to understand the right, and second, in the dominant legal consciousness of the majority of legal operators.
Regarding Kelsenian iuspositivism, it should be noted first that Kelsen's theory received in Latin America is not the same as Kelsen's theory originated, spread and known in Germany and the rest of Europe. Kelsen's Impure Theory of Law was known in Latin America only after 1940 and had its greatest influence between 1940 and 1980. Paradoxically, the rise of iuspositivism in Latin American countries occurred simultaneously with the crisis and its collapse in the rest of the world.
Hence, López (2004 p. 135) identifies as neoclassicism the stage of Latin American legal thought, which although still formalist, is the practical version of classicism in which such a current (classicism) is confirmed and ensured through of a modern and scientific theory like Kelsenian iuspositivism. But it must be said that classic Latin American formalism cannot be confused with Kelsen's positivism because it is only after 1940 that Kelsen's “Pure Theory of Law” was received and when classicism would be influenced by it, and then adapted or juxtapose it to their interests, being, according to López (2004 p. 123), a totally idiosyncratic reception of Kelsen's pure theory, in which opposing theories are reconciled again:While Kelsenian positivism and German conceptualism are formalist, German conceptualism is completely anti-positivist.
2. The antiformalism in Colombia and Mexico
Latin American antiformalism arises as a reaction to that mixture, juxtaposition and adaptation of doctrines in many ways opposed to each other (French exegesis, German conceptualism and Kelsenian iuspositivism) called and known as formalism in Latin America, characterized in the first place by manifesting that by Within the law, there is no independent dimension of justice or equity; second, that the activity of law is not aimed at examining realities, interests or needs, but rather pre-existing texts; third, that in the legal system there are no legal gaps, because there are cognitively reasonable ways to fill them, and fourth; that what results from the interpretation of the law is generally definitive and correct (López, 2004 p. 130).Only it comes a little late compared to the rest of the world.
In the Colombian case, it is only until the mid-1980s that the first criticisms of Kelsenian formalism and iuspositivism are presented. This is how, from a Hartian conception, the application of analytical philosophy to law is made, the important iusfilosófica work of Robert Alexy is introduced, with which the late-century iuspositivism of the 20th century is strongly criticized; and a critique of Kelsenian iuspositivism and Creole proceduralism is elaborated, starting from a Marxist perspective close to Foucault's structuralism, although he also interprets Law from a Marxist reading of Hegel, to cite the main examples. But it will only be in the 90s and with the Colombian Political Constitution of 1991,that one arrives at the development of a true anti-formalistic iusfilosófico thought that not only remains in the theory but reaches and affects the legal praxis.
The Colombian Constitution of 1991, inspired by the post-war German Constitution, creates a new institution in the country's law: The Constitutional Court, the body responsible for ensuring the constitution and constitutionality of the State. Known as the Golden Court, the first generations of constitutional magistrates, inspired by Hartian positions and the American Legal Realism, elaborate rulings that seem more like true treaties of iusfilosofía, in which they encourage the role of judges as creators of law (as that the applicable rule is unconstitutional), judgments in equity, and the use of general principles of law as a source of law, in many cases, of greater importance than the Law. With this, the judge ceased to be a simple legal operator under the rule of law,to be a judge, interpreter and creator of law. Likewise, the legislators saw their power as the sole creator of inscrutable laws diminished, since the Constitutional Court was given prior and also subsequent control of constitutionality, of laws issued by the legislature, as well as executive orders.
With regard to the Mexican case, it is worth quoting the words of José Ramón Narvaez and Espinoza de los Monteros (2011. p. XIII) “the effervescence for legal interpretation came to Mexico just a couple of years ago, it seemed that antiformalism (in all its forms) had reached legal science ”. This text was published in the recent year 2011, so we can deduce that the reception of antiformalism in Mexico is recent. One of the most significant cases in which the influence of antiformalist tendencies can be observed is the Radilla Pacheco case against the United Mexican States, ruled by the Inter-American Court of Justice against Mexico. Faced with this case, the response of the Supreme Court of Justice of the Nation was forceful. In a file, the ministers of the Court,They adopted the system of control of conventionality or diffuse control of constitutionality, giving Mexican judges the obligation to carry out a diffuse control of constitutionality on the norms that they consider to be harmful in cases as they are contrary to the constitution, an obligation that was exclusive to the organ Supreme Justice. This case, in addition to the reform to article 1 of the 2013 Constitution, in which judges are removed from the total rule of law and are called to rule in accordance with the Constitution and Human Rights ratified by the Mexican State, are one of the first reflections of the recently adopted antiformalist tendencies.giving Mexican judges the obligation to carry out a diffuse control of constitutionality on the norms that they consider to be detrimental in cases as they are contrary to the constitution, an obligation that was exclusive to the supreme body of Justice. This case, in addition to the reform to article 1 of the 2013 Constitution, in which judges are removed from the total rule of law and are called to rule in accordance with the Constitution and Human Rights ratified by the Mexican State, are one of the first reflections of the recently adopted antiformalist tendencies.giving Mexican judges the obligation to carry out a diffuse control of constitutionality on the norms that they consider to be detrimental in cases as they are contrary to the constitution, an obligation that was exclusive to the supreme body of Justice. This case, in addition to the reform to article 1 of the 2013 Constitution, in which judges are removed from the total rule of law and are called to rule in accordance with the Constitution and Human Rights ratified by the Mexican State, are one of the first reflections of the recently adopted antiformalist tendencies.in which the judges are removed from the total rule of law and are called to rule in accordance with the Constitution and Human Rights ratified by the Mexican State, are one of the first reflections of the recently adopted antiformalist tendencies.in which the judges are removed from the total rule of law and are called to rule in accordance with the Constitution and Human Rights ratified by the Mexican State, are one of the first reflections of the recently adopted antiformalist tendencies.
Conclusions
Despite the fact that the anti-formalist current has had little to reach Latin America, its influence has been noticeable, even in Mexico, where it has only been received for a few years. However, and what is most criticized for this trend, is the legal insecurity that represents that the judges are creators of law, since there are no clear rules on which they must base their decisions, that is, it is left to the power of the judge the decision of whether a law is fair or not and its application, without having established objective foundations, but is left to the full subjectivity of the judicial operator.
Bibliographic references
- López Medina, Diego Eduardo. (2004). Impure theory of law. The transformation of Latin American legal culture. Legis: Bogotá, Narváez, José Ramón, Espinoza de los Monteros, Javier (2011). Legal interpretation: historical models and realities. Mexico: National Autonomous University of Mexico. Institute of legal research. Recovered from: http://biblio.juridicas.unam.mx/libros/7/3015/pl3015.htmPérez Vivez, Álvaro. (2011). General theory of obligations. Ed. Doctrine and law: Bogotá. Sec. V. Timm Hidalgo, Ana Karina. (2010). “Between formalisms and antiformalisms: some basic approaches. Madrid: Bartolomé de las Casas Human Rights Institute. University Carlos III of Madrid. Recovered from:
