General Principles of Law Contemplated in Article 230 of the Political Constitution. Moral or Legal Norms?

Abstract

Lack of legitimacy in Justice Administration is still noticed after 25 years; this demands a deeper investigation on the reasons and a proposal of solutions. One of the solutions involves Article 230, which text seems to evocate the legal reasoning of the 19th century. The declaration of principles as ancillary criteria seems to be opposed to a legal reasoning which claims its prevalence on remaining norms of the legal system. For this reason, there is a fear to the breach of public duties by jurisdictional officers at the time of relevant application. Such interpretation has been based on the sense given to the expression 'general principles of law' as norms that are out of the legal system, as contemplated in Sentence C-083 of 1995. It is then necessary to address its study from three aspects: changes of legal reasoning demanded by the Colombian social rule-of-law state; the analysis of bibliographic sources employed in the sentence; and consistency with other norms of the legal system. The main finding is the need for a new interpretation of Article 230 in the light of nature and functions of the principles in the Colombian social rule-of-law state.