Amadeo González Trivino
This of the labor reforms that are announced, generate a lot of controversy and do not clear up the concerns that correspond to the minimum compliance that the Magistrates and Judges themselves have had to apply from the beginning, by way of jurisprudence, rather than by the issuance of a Law, of all the elements that were established in the supposed Constitution of a Social State of Law, and on the contrary, we continue to perpetuate and repeat that hateful mania of subjection to the norm, as if it were not dynamic and did not fit to the times of social transformations, as corresponds to all social, human and historical concepts.
We have to preach that a true conception of Law, in accordance with doctrinal and jurisprudential concepts, cannot be tied or schematically intertwined to the saying of the norm alone, and that it, the norms, evolve and must be made to evolve with that dynamic of the succession of complex transformations that are taking place in the field of their realization, of the world that demands them and to which they must be applied, all necessarily focused on the concept of value and the transcendence of the human being, which ultimately is precisely who they are directed, to whom it protects and with whom it can really apply and direct its benefits, its inherent faculties giving it life and transforming that literality into an essential factor for change, for the rationalization of being.
The concept of positive law, such as the creation of norms by the legislator, which are imposed and must be applied exegetically, since they are part of a budget where the logical imperative determines a behavior to which a consequence must be extracted or a requirement imposed, it is not the same in all the structures proper to the law, so that it is unchangeable, but they require that the constitutional substrate that gives it coherence and demands and demands, in turn, adaptation to the transit of life and years and the human conditions, has been transformed so that today we understand and put aside that theory to the point that at the time of an evaluation or application criteria of a norm, we observe the complex social world to which it belongs and make it accessible to others. ultimate goals, that is, that we humanize it for social purposes and general protection.
A labor law, as it is what I want to approach now, does not require reforms as it is proclaimed, but is determined by inertia and the lack of investigation and the total ignorance of the public official who, as a judicial operator, from his desk, does not know the intricacies to which the worker is exposed and in which he lives or must suffer to gain access to the position or to remain in it.
The reiteration and the way of generating judicial orders, with that well-known “copy and paste” criterion, has allowed to put an end to the permanent creation of Law, as is the function that the judicial operator fulfills and must fulfill, especially that in In each case and at each moment, the conditions and factual situations are transformed and dimensioned as they should be dimensioned in the context of reality, of life and of the human being, above all.
Recently, the urgency and need to apply the constitutional conception of labor stability has been proclaimed, all of which is a simple death letter, the same as everything that is proclaimed with the application of the general principles of labor law, when we talk about acquired rights, ultra petita rights or the application of the most favorable norms, and that is when the judicial operator ends up saying, if they did not request it, I do not grant it, I do not touch it, I do not deal with that situation, so be it their violation or the affectation of their right is evident and under the response that a way of sanctioning the employer with compensation for unfair dismissal, limited in the time for its recognition and payment, has been consolidated, is when the mockery of the constitutional precept becomes evident and everything remains a judicial pantomime that in no way contributes to the consolidation of a protectionist regime, such as the one that was thought to be adopted for Colombians at the time.
That categorical paragraph of the Colombian political letter that reads: “The law, contracts, agreements and labor agreements, cannot undermine freedom, human dignity or the rights of workers.” It is part of the chorus of paper rules, which are never applied and which the judges or magistrates themselves know how to sprain and evade them due to the literal nature of the contract or by being subject to the rule. All of which is worth reviewing at this time and knowing if a reform is really required or a mentality and an education that, from the Academy, lead us to understand the supremacy of the norm and the way to make it effective with a higher rank than it. carries within himself.