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The legal apparatus – an approach to the law as bureaucratic organization

Francisco José AYALA SANMIGUEL student laureate

°1976 Colombia
Lawyer, 2000

La máquina de hacer justicia - Una aproximación a la justicia como organización burocrática

In this study the author analyses the working of the legal system in Colombia, taking the sociology of law as his starting point. The text intelligently combines the analysis of the various theories of law as regards the task of the judges in the light of the actual Colombian legal practice.
Within this framework the author first makes a detailed study of the various theoretical models on the basis of which the task of the judge is historically described or laid down. As a rule these models define the activity of judges according to the various schools with regard to the interpretation of the law. The author shows that there is a great discrepancy between the judges described in these theoretical models and the real judges, because when creating their models the theoreticians have considered neither the bureaucratic conditions in the working of the law nor the actual conditions in the communities in question. In order to underpin this last point the author makes an exhaustive examination of the working of the judicial system in Colombia. He concludes that the law is a heavily bureaucratized apparatus due to the material conditions of Colombian society, which is characterized by poverty and social inequality. People hope to settle problems largely by recourse to the law. The system is thus overburdened, while being at the same time inadequately funded and confronted with a voluminous but equally largely unclear body of instructions.
In a very organized and thorough way the work gives concrete reasons and indications why the crisis in the judicial system (slow, overburdened, inoperable, etc.) does not correspond to the descriptions postulated in the various legal theories. From this perspective it can also be stated that this study not only offers an exhaustive analysis of a problematic phenomenon of great importance to Latin America – the crisis in the judicial system – but also contributes to a clearer understanding of the problem from another perspective, namely the Colombian reality.

Report: Dhr. Y. Haeck, Human Rights Centre, Universiteit Gent, Belgium