Nature and Institutional Inefficacy in Spanish America

Abstract

This chapter is the centerpiece of the work of my doctoral thesis Brief History of HispanicAmerican Constitutional Law. Dissonance with its institutional practice by incardinating in the historiography of public and private institutions of Hispanic America, an aspect in which lies all the problems that have impeded its transition to a modern model of State, with brief exceptions such as the case of Chile, from which our thesis is based since as will be evident, the constitutional architecture of the institutions is manifestly divergent from its operation. We intend to achieve the semantic, syntactic and realistic approach of the term institution, with sufficient entity that transcends its historical condition of simple resulting from the legislative production and cultural development of a community, to demonstrate that the legal system that governs these societies has not represented, neither represents, the collective interest nor materializes the common well-being, and also make patent from that understanding the unviability and ineffectiveness of the regulatory mechanisms of society called Public Institutions. On the other hand, we dispense with any positivist Kelsenian axiom, in which social cohesion can only be achieved coercively in compliance with the mandates contained in the rules, as we will demonstrate that there are stronger glues such as adequate training that encourages social values in a truly democratic scenario and tend to preserve the natural right par excellence, that of Freedom. It is worth noting that the analysis of this chapter is critical as in general is all the work, based on a method based on inductive and verifiable reasoning, without resorting exclusively to premises to arrive at mechanized or modulated conclusions; on the contrary, we try to reach to them through statistical and historical analysis coupled with the observable.