La historia de otros: ideología del derecho procesal europeo y su trasplante a América Latina
European procedural law has built its own history on Roman law and the impact of the popular rights of the Germanic peoples that slowly invaded the European geographical space. The Italian classical treatise writer Giuseppe Chiovenda (1872-1937) offers a good synthesis of the history of this Europea...
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| Format: | Article |
| Language: | Spanish |
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2020
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| Online Access: | https://dialnet.unirioja.es/servlet/oaiart?codigo=8062509 |
| Source: | Revista Via Iuris, ISSN 2500-803X, Nº. 29, 2020, pags. 13-59 |
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| Summary: |
European procedural law has built its own history on Roman law and the impact of the popular rights of the Germanic peoples that slowly invaded the European geographical space. The Italian classical treatise writer Giuseppe Chiovenda (1872-1937) offers a good synthesis of the history of this European common process. Latin American authors and writers have adopted this historical narrative and offer it, without further ado, as the official version of the history of our procedural institutions. The problem isthat, in this way, the local history ends up being the history of others. The Germanic element is presented as the popular and folkloric and ends up being subordinated to the elegant presence of a technically superior Roman juridical spirit. This strategyhas also made the popular element invisible in Latin American conflict management. Official European history has also discarded the Germanic popular as a source of irrationality in the judicial and evidentiary process. The article reviews recent historiography to show that the popular-Germanic processing of disputes was not necessarily "irrational" or brutal. In conclusion, the article argues for the need to begin making a true history of the process in Latin America that is not content with importing the ideology of the European constructs still in force in the dominant literature of procedural law. The history of others has blocked one's own. Only a close historiography can help us find the local common process or, what is the same, the interaction between diffuse social dynamics and the specialized, differentiated and bureaucratized regimentation of state law. |
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