Jurar, gobernar y juzgardos estudios iushistóricos sobre la jura de la constitución de Cádiz y el juramento procesal en Colombia

Abstract

Our intention is to analyze, within the Colombian context, the two sides of the judicial and political oath. The political oath under the validity, partial and limited, of the Cadiz Constitution of 1812 in the Viceroyalty of New Granada; and the judicial oath in the judicial trials in Antioquia (Colombia), during the Nineteenth Century. In the first part, based on the analysis of the evolution of the oath, we can understand why, in times where historicism is strong, the ritual of the oath to the Constitution of Cadiz was necessary for it to become foundational norm of the new political relations in the Viceroyalty, although this Constitution was not fully effective in this territory. The historical agreements that found the basic structures of the power, such as the relationship of vassalage and the scope and limits of freedoms, have their roots in History and become concrete through the loyalty oath to the political pact. Furthermore, in this first part, the conclusions can be synthetized in the following statements: i) the oath to the Constitution of Cadiz in the New Granada was not a widespread act nor in the territories nor between castes, but it was a proof that this Constitution was accepted in certain territories of the Viceroyalty; ii) the Cadiz institutions failed to permeate the political of New Granada reality, but this does not mean that it was not taken into account in some aspects, nor does it deny that there were regions where it was sworn and it was implemented in one or another particular institution, although with a limited impact; iii) the main influence of Cadiz in the independence constitutionalism of New Granada was marked by a double quality: a) sharing sources and serving as a source, and b) consolidating, based on the rejection to the Cadiz constitution, the constitutionalism and republican discourse in New Granada; and iv) Cadiz is thus the first and last constitutional law (different to the historical Constitution) in the Viceroyalty, but it was not constitutional law in Colombia. In the second part, it was there, more clearly, we could observe the process of secularization present in the face of the institutions less studied: the judicial oath. There could see, in the early years of the XIX Century, an oath even with some ability to coerce the souls of the subjects involved in the judicial trial, particularly witnesses, matter that we explained from the culture in which they were developing, with their catechisms and manuals for confessors and books of good-death, which did so much emphasis on respect for the sworn word. However, with the passage of time, appear mixed formulas that seek to establish the oath in its religious essence, but it is the law that provides the coercive component, because gradually loses confidence in the word of the subjects involved in the judicial triai. It's possible to see the effort to increase the punitive discourse as a way to assume the hollowing out of the oath, and in this way it is marking a strong statist emphasis on the judicial process later be checked with the expropriation from the State to the trial and the law. From this mixed oath become, a few decades later, a legalistic formulas that emphasized that is the state the source of the obligation to tell the truth and the power of punishment for those who do not tell. But just at this moment of legicentrism and statism it is that the judicial oath accelerates its emptying, because no constrains the soul of who swears. Thus it passed the last moment studied: the oath as a secretarial formality without much ritual, where predominates the distrust of what was said by the subject involved in the judicial trial, especially the witness. Just at this time other evidence are strengthened and they displacing to testimony as the main evidence in court: we refer to the expert forensic and documentary evidence.