02/10/2017 Francisco Muñoz Gutiérrez Rebellion The Garden of wills between Volcanoes emotions ... Small Hispanic treated with 14 botanical landscapes
1. The Hispanic bonsai nursery
2. Coercion versus moral coercion policy; the Catalan case.
3. The monarchy without nobility
4. The Spanish Pax
5. From the Spanish Legion Atresmedia
6. The authoritarian bias and false separation of powers
7. The sacralization of judges and the Empire of the Judiciary in August.
8- the legislator and the funeral of fundamental rights
9. hangman judge cherubic justice: the eunuch and the gypsy in the henhouse.
10. The Royalist State Expediency
11. The Hallucinogenic the Supreme Court and the naive duckies fair
12.- The epicenter of judicial prevarication
13.- The Chinese vases of the Penal Code; 446 and 447.
14. Subterfuge technical transgressor of law
Foucault said that the speech is not a linguistic fact (1), but a strategic game of struggle and confrontation; of action and reaction, argument and counter-argument; of domination and accommodation; of critical engagement and uncritical submission. Foucault was certainly French.
A Spanish had ever spoken of "strategic game" in the twentieth century Spain. Even in the current Spain, since from the dictatorship bar any talk show, or television, or parliamentary debate, set essentially any linguistic fact; much less a "strategic game". In the last 80 years that exchanges of ideas Spanish medium which is usually practiced confrontation of wills. Be sovereignty or independence, monarchical or republican, right or left, professor or párvulo, judge or lawyer, the Spanish today operates in all areas of his life in a huge garden of wills that permanently blooming among volcanoes of emotions ; from Algeciras to Portbou.
A Spanish had ever spoken of "strategic game" in the twentieth century Spain. Even in the current Spain, since from the dictatorship bar any talk show, or television, or parliamentary debate, set essentially any linguistic fact; much less a "strategic game". In the last 80 years that exchanges of ideas Spanish medium which is usually practiced confrontation of wills. Be sovereignty or independence, monarchical or republican, right or left, professor or párvulo, judge or lawyer, the Spanish today operates in all areas of his life in a huge garden of wills that permanently blooming among volcanoes of emotions ; from Algeciras to Portbou.
1.- The Hispanic bonsai nursery
Wills and emotions in Spain make an enveloping reality without territorial or institutional exception. Not even the current institution of Spanish justice -heir tradition of nineteenth-century Romano- law, is configured as a territory exception of wills. On the contrary the Spanish justice is established as the most subtle Hispanic bonsai nursery national society. Apparently the court ritual is structured around the rhetorical discourse where two parties opposing, called litigants try to persuade a third, called jurisdictional court, where magistrates of black, called judges exercise their power of coercion consequence of submission of the parties to the existing social order.
Legal scholars describe this dialectic under the euphemism of the "principle of contradiction". A ritual of procedural law, also commonly known as "litis debate" and whose essence reminiscent of the literary contests where some lawyers, legal professionals rhetoric, competing before the court -soberano power of duress, counting the stories of their customers as best matches in the "right."
Do they form these legal discourses what Foucault termed as "strategic games !? An affirmative answer would be very questionable because after the first appearance of rational and objective arguments these discourses often have more trilero character of dialectical confrontation since its main objective is to emphasize the favorable disfiguring what adverse to the interests of the client, being that all truth becomes pure coincidence. Even the truth competes here with lying on equal terms. In the theater of justice truth is the sentence.
2.- Coercion versus moral coercion policy; the Catalan case.
But all truth is pure accident in the liturgy of justice. State and Law rest since ancient times on the organization of coercion, so that political coercion has as its main object the realization of the right, while social coercion aims morality (2). A palpable example of this architecture can be seen in the current conflict of Catalan independence. Conflict emerges an Orthodox confrontation between political coercion of course Spanish rule of law, and social coercion independence of the alleged morality of the citizens of Catalonia. Consequently morality is understood as the set of customs that prove the historical uniqueness of Catalan identity.
Faced dialogue between these two types of coercion is pure art of trileros. The debate lacks rational basis since political coercion of the State is based on the power of quoconstitucional status and social coercion of independence is based on the customary oppression of custom identity. Are two incommensurable logics; irrational base, and other emotional constitution. Although both of the two are rooted in the same historical event; the Spanish civil war with its outcome in the long period of Franco 's dictatorship. Without rationality no dialogue or objective reality; only conflict of wills and submission.
3.- The monarchy without nobility
Only conflict of wills and submission. Soberanista old dynamic remains today in the World 8 Unrecognized States; Abkhazia, the Northern Cyprus, Nagorno-Karabakh, Kosovo, Ossetia, Western Sahara, Somaliland and Transnistria. On 25 September a referendum on independence in Iraqi Kurdistan that threatens to war consequences announced by Turkey was held. In Europe we have two territories they hope to achieve independence; Catalonia and Scotland. And only Scotland undertook a sedate rational debate and played down the confrontation of wills between the English and Scottish independence soberanismo.
The monarchy without nobility Spain is not a rule of law simply because in 1978, after the biological death of the dictator, reached an agreement on a constitutional consensus that established the quo alstatus respect consolidated over 40 years of dictatorship. The transition ensured peace in 78 of the 36 winners establishing a monarchical democracy not reconciled with the principles of republican democracy. It is illogical to think that the dictator and his cronies establish a succession regime in terms of republican rights so they opted for the formula of a monarchy without nobility; isolated, sustained and dependent Wills persistence and continuity of emerging elite the dictatorship.
Consequently the new social order of 78 responded, rather, non - confrontational consensus where peace respected the old grandfathered victor in favor of a certain conservative restraint of the will of freedom and justice of subject. The peace agreement was achieved about safeguarding the modus vivendi reached in Spanish society by subjecting (accommodation) of two unequal parts to the Constitution of 1978.
4.- The Spanish Pax
This is where we should remember Ronald Sokol, a lawyer and veteran French-American writer, who states that the purpose of the law, unlike science, is not to determine the truth; "Their main objective declares the prestigious jurist, is to minimize the conflict" (3). And indeed the creation of 78 played down the conflict of the Spanish wound, and made possible the peaceful transition without altering the inequalities imposed by the former dictator's regime.
Javier Tusell personalize, however, this "Pax Spanish" the heir monarchy regime to avoid bankruptcy legitimacy of emerging elites in Franco. "In the case of the Spanish transition Tusell- says, the monarchy served as maintainer instrument that legitimacy in that, if one side was the heir of the regime, the other was building a new democratic legitimacy. Monarchy contributed, therefore, to keep the feeling of a leisurely and from moderation change was possible. He avoided ultimately breaking the law and produced a profound transformation but from the budgets themselves the previous regime " (4).
5.-From the Spanish Legion Atresmedia
The legitimacy of speaking Tussel is not something abstract because what was inherited from the regime were already consolidated privileges passed without discussion to swell the new status quo of democracy 78 (5). And all kind of privileged protagonists of the dictatorship passed, the overnight, to become respectable businessmen of great merit. A shining example of this transition from legitimacies can be no doubt José Manuel Lara, who was not only captain of the legion, and actively participated in the military repression of Barcelona, but in 1949 founded the Editorial Planeta; Planet today that integrates Atresmedia (Antena 3, La Sexta, Onda Cero, Europa FM and FM Melody), corporation and is also the largest shareholder of the rightwing newspaper La Razon Group.
6.- Authoritative bias l to false separation of powers
However, there are tons of writings by analyzing the Spanish transition from the perspective of the form of government. However hardly found any work on the transition from one legal or judicial perspective. In this area, the Constitution of 78 never fought deep authoritarian bias of the old dictatorial regime, nor substantiate any democratic rule of law and never the regime of law applicable in the new Spanish society was reformed simply the corresponding systems adapted to the right according to political and institutional developments incorporating the new parliamentary monarchy. Consequently it never reformed in depth the institution of justice that remained interconnected with the executive, and economic, for many "underground" channels.
7.- The sacralization of judges and the Empire of the Judiciary in August.
Lack of technical expertise of judges is a macabre affair in a world where the encyclopedic wisdom ceased to exist with the emergence of specialized sciences. However, in the shadow of the antiterrorist fight against ETA Spanish magistrates suffer the paradox of a process of isolation and sacralization with undisputed privileges out of control and scrutiny. Paradoxically growing irrationalities of the system were rising, while the conflict of Spanish society and saturation of the courts.
Consequently, since the Constitution of 78, the Rule of Law can often understood as the Empire of the Judiciary, since the law usually related to the social and economic order develops slowly lagoons where the judiciary specialized -not - get enough to adopt the "most appropriate" to protect the "new" status quo resolution of democracy elasticity.
Corruption is triggered with the joy of the housing bubble, and justice becomes an industry that moves substantial amounts of money. The benefit is so succulent that there are law firms that now pay expensive television advertising campaigns with Iker Casillas to capture massive justiciable in similar cases that already have standardized. This shows clearly that legal services in Spain today make up proportionately even more intensive sector financial services sector capital transfer. The gap of 78 justice system and robagallinas
Fundamental rights are fundamental drastically for very honorable and very controversial Spanish elites for the rest of litigants. It is the gap extending between rate cases puppeteers Granada and cases of corruption honorable Jordi Pujol type.
It is a deep gap that affects all areas of political, economic and legal life. Gap which constantly shines the institution of the Spanish Banking lighting the deposit richness of the economic exploitation of the public by the lucrative exploitation of loopholes in the law with what is commonly known as the "fine print" of the contracts. speculative use of consequences euphemistically little 'small' at best.
8- the legislator and the funeral of fundamental rights
Clearly the new legal order created by the Constitution of 78 has just makeup gaps in the system of the dictatorship. The new parliamentary legislature transition has worried little real legal certainty and effective citizenship since they not only reformed the Spanish judicial institution, but only has dealt with slowly incorporate the new emerging realities without significantly touch the essential core of the judicial tradition of the old regime. Even as modern institutions as "ombudsman" are apparent creations without actual efficiency ever since they are lacking testimonial institutions powerless to defend the citizens hit their rights by both the executive and administrative power, and by the judiciary. Rather than "ombudsmen" authentic morgues where citizens attend the last ritual burning of their alleged "fundamental rights". Worth more for their paper that their reports.
9.-hangman judge cherubic justice: the eunuch and the gypsy in the henhouse.
However, the actual miracle of this transition consisted of customary accommodation of litigants to a judicial authoritarianism vein embedded in popular culture. The Spaniards kept the inertia of submission to the typical "robagallinas justice" of the courts of the dictator's regime. Lawsuits you have and you win! he exclaimed with great wisdom gypsy who thought so little of their fundamental rights as the judge who "ajusticiaba".
10. The Royalist State Expediency
With the transition of 78 born therefore the monarchical state as a legal instrument Convenience moderation of new emerging social order. The official mantra that is repeated everywhere is that Spain has become the overnight in a perfect "democratic rule of law" which opens the way modern concept of the "welfare state". A whole bubble utopia and pragmatism beach felipista expiration date. Moderation of transition is essentially preserved by the judiciary the rights and freedoms of the powers of the rentier, business and banking oligarchy against the rights and freedoms of the invocasen litigants against the consolidated powers. The latest example forms the case of the floor clauses.
Thus the "robagallinas justice 'describes an arrangement focused on primary offenses classic forceful immediacy; robbery, theft, murder, etc. System where, however, grow in marshy territories depth and extent as criminal cases are complicated by more complex and less immediate action. And it is in these areas where the figure of the judge ignorante- specialized, technically, lacking resources and subject to a crippling productivity settles and consolidates the 'State of convenience ".
11. The Hallucinogenic the Supreme Court and the naive duckies fair
The Supreme Court informs all powerful hallucinogen legal citizenship where all justiciable represents the pantomime atrezzo of the original dispute. Litigation serves, in turn, justification for the action was brought around a system allegedly misapplied. Whole "theater" naive tomfoolery for litigants who come to TS with aspirations of justice. And quite an expensive therapy for malcontents who gives huge profits to the law firms of those losers clients.
How you can err fifteenth century gunner firing his cannon at a castle located 10 meters away? ... Obviously very hard. Well this is what explains the high frequency of refusals and rejections of resources annually presented to the Supreme Court. It is very difficult to understand that despite this persistent statistics for 4 decades, the General Council of the Judiciary does nothing 'Nothing - or to improve the training of lawyers, or to avoid economic bleeding of litigants. It is therefore paradoxical that vociferously for more than 40 years of judiciary in the democratic regime, the General Council of the Judiciary itself so clearly despises the Spanish citizenship systematically ignoring the art.
12.- The epicenter of judicial malfeasance
Until the canonical judgment of the Supreme Court STS 2/99 of 15 October, judicial prevarication was an impregnable psychiatric theme based on the demonstration of a perverse intention magistrate accused of prevarication. Accused of malfeasance to a magistrate was quite a suicidal goal clearly impossible because the system itself impunity shielding the prevaricating action. However the judgment of the TS 1999 masterfully synthesized later in the legal basis of TS Auto fourth of March 5, 2014 (special cause 20747/2013) prevents the concept of "subterfuge of prevaricating, coach of law, seeking the excessiveness of his speech ensure the unlawfulness of their behavior. "
From there a space that rejects the subjectivist conception of facing the crime of trespass against legal professional scrutiny of their own technical arts opens. For the first time the jurisprudential doctrine neglects the nineteenth speech wills.
13.-Chinese vases of the Penal Code; 446 and 447
This new jurisprudential doctrine although feel a relevant base, it is undoubtedly weak and sufficient to generate change in the habits of authoritarian arbitrariness of the judiciary. No lawyer in his right mind would promote a complaint by court trespass against a court in his constituency of normal activity. No matter how clear it was prevarication, imprecision characteristic of art. 446 and 447 of the Penal Code that Spanish will prevent the most benevolent of cases irremediable act of committing professional suicide.
The daily reality of the provinces is that the Spanish judicial activity is designed to image and likeness of a Jesuit boarding school macabre where lawyers spend the same continuous examination before the same court. In retrospect provincial jurisdictional courts it is as a literary contest legal "stories" where each lawyer recurrently presents a different story at the same court rhetorical punctuating him for years and decades. Accusing therefore the court of prevarication is like signing their own death sentence civic daring and naive lawyer.
Even in the field of legal aid it is possible, at least in Andalusia, promoting a procedure for judicial malfeasance against a court that has robbed a justiciable by an allegedly unfair resolution adopted in favor of the economic interests of a bank. The shift lawyer immediately active art craft. 32 of Law 1/96 and ad hoc postulates arbitrarily and antijurídica- -of which the claim is untenable, and automatically the High Court of Andalusia (TSJA) denied the right to dispossessed justiciable. The recognition procedure is administrative law, but the TSJA automatically confirms the denial to the poor of the rights established by art. 119 of the Spanish Constitution without examining whether the administrative decision is properly fit right, or is resoundingly arbitrary. This fact can also be projectable to other jurisdictions in Spain.
14.- Technical subterfuge transgressor of law
Revision takes place in two legal fields; the nomofilactico and factual. Only nomofiláctica review is appealable to the Supreme Court, while what is commonly referred to as "review of the assessment of evidence" is not amenable to any judicial instance whenever the art. LEC 469 excludes the extraordinary appeal for procedural infringement review of the factual basis and assessment of the test conducted in the second instance.
All that remains is the catchall of art. 24 of the Spanish Constitution where any accusation of irrationality, error, or arbitrary action brought against a judicial tribunal crashes to the principle of "literosuficiencia" combined with the nineteenth - century principle of "sound judgment" and absolutist power of the "weighting" arbitrary judge. An entire high - speed highway where the judge is the law in Spain.
Thus, the modulated distortion of the factual basis of the dispute by a fuzzy compliance with the jurisdictional duties, combined with the belligerent obstruction of the relevant law and a convenient dose of distortion of the factual basis established by the original ruling, ensures impunity judicial will.
Distortion technique is done in order both to blur the unlawfulness of prevaricating behavior, as in order to properly motivate the unjust resolution. The court is not an ignorant transgressor of law. Quite the contrary; is a technical versed dominating right to the point of making a power of judicial prevarication virtual impunity of the will of the judges of the provincial courts.
Notes: ( 1) .- Foucault; Truth and legal forms. Gedisa 2009.
(2). - Rudolf Ihering; The end of the law. 1883.
(3) Ibid .-
(4) .- The Spanish democratic transition from a comparative view. Tussell Javier Gomez. S Accounting # 41, 1988, p. 109 to 120. (text available in pdf https://dialnet.unirioja.es/servlet/articulo?codigo=2047970, p. 8.)
(5) .- There is no doubt that the dictatorship created an emerging class in Spanish society during its 40 years of authoritarian rule. Manuel Ramírez, professor of constitutional law at the University of Zaragoza sums it up; "... during the sixties and early seventies, capitalist patterns of what one day di called the" techno-pragmatic Franco 'originate and settle this new social class that had two clear objectives: to preserve at all costs economic levels obtained and logically away any hint of a new contest in which "could lose some." Reflections on the Spanish transition to democracy. Journal of Political Law, No. 31. 1990, pages 9 to 25. (Text in pdf accessible http://revistas.uned.es/index.php/derechopolitico/article/view/8440/8076, p. 18).
(5) .- There is no doubt that the dictatorship created an emerging class in Spanish society during its 40 years of authoritarian rule. Manuel Ramírez, professor of constitutional law at the University of Zaragoza sums it up; "... during the sixties and early seventies, capitalist patterns of what one day di called the" techno-pragmatic Franco 'originate and settle this new social class that had two clear objectives: to preserve at all costs economic levels obtained and logically away any hint of a new contest in which "could lose some." Reflections on the Spanish transition to democracy. Journal of Political Law, No. 31. 1990, pages 9 to 25. (Text in pdf accessible http://revistas.uned.es/index.php/derechopolitico/article/view/8440/8076, p. 18).
(6) .- Richard Dawkins' Law Delusion; Ronald SOKOL; 12/30/2015; www.project-syndicate.org
Blog author: https://lacalledecordoba21.blogspot.com.es
Rebellion has posted this article with the author 's permission through a Creative Commons license, respecting their freedom to publish it elsewhere
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