Judges and the discovery of truth
For example, let’s think of a football match between Juventus and Barcelona, the score is 4-3 in favor of Barcelona, suddenly, Messi scores a goal, but this is annulled because the referee determines that it occurred in advance position; Lacking 15 minutes to finish, Cristiano Ronaldo scores another goal, however, after the review of the cameras it is confirmed that he went with his hand, so he is also annulled. The game ends and 3 yellow cards for Juventus and 2 for Barcelona are noted.
Barcelona’s victory did not depend on the referee, but on his players, who led the game in their entirety, the referee was a passive agent that intervened if and only if a game rule had been violated, at no time it is evident that his valuations o Preferences for one of the teams have decided victory, this is the role that the adversarial model awaits for the judge. However, even when a football game has described as an example, the scenario in a judicial process is very different.
Unlike the party where the referee directly sees the development of the game, he sees the facts, in a process does not happen, the information that the judge knows is that the parties, as conductors of the process, give him. And, being its restricted activity to the observance of the laws, it follows that for this model the content of the decision is not essential, it only matters that the conflict is resolved effectively and that is the main criticism it receives, Cavani; Vargas; Tarufffo.
Because if it only matters to put an end to the dispute, then what differentiates the judicial process from the act of launching a currency in the air to resolve a conflict, if in both a solution is reached. On the other hand, the procedural or ritualized model, although also pursues as the main objective the resolution of conflicts, does not emphasize the parties but to the procedure, since, the "the process is, in essence, a ritualized show". That is, what differentiates the judicial process from other methods to resolve conflicts.
It lies in the role that social beliefs fulfill to qualify it as legitimate. The main exponent of this theory is Chase, who concludes, through observation to an African people, that many of the “necessary” conditions of a process are established by the customs of a certain group of people, subjecting the acceptance of the process To fulfill these steps, "something similar to ritual behavior patterns". Thus, in his book, the African tribe Azande goes to the oracles of the people to solve their disputes.
The decision is achieved through a magical rite, which is not questioned, meanwhile, is dictated by the oracle. Obviously, if we take this example so far from our "reality", you can doubt this approach, but if we observe carefully, this same security in the procedure is in current and "modern" procedural models because, for example, no one would accept that The lady who sells her in the market resolves her food case and forces him to pay a pension to her son.
Thus, the "oracles" of our society are the judges, trained people, with studies and experience to which we give them the power to force us to give, do or not do something. This formal provision of the judge ("rite"), in no way contributes to the discovery of the truth, but is mandatory to consider legitimately to the process. In contrast to the previous models, an approach arises that does conceive of the search for truth as the end of the process, this is: the inquisitive model.
This approach considers the role of the judge of utmost importance for society, since its decisions not only affect the parties within the conflict, but the entire population. The private sphere of the conflict that emphasizes the adversarial model, is discarded by this position, since, being the State the Supreme Entity responsible for ensuring the welfare of the population, can through its representatives, in this case the judge, the judge, the judge, the judge, the judge, the judge, intervene in the private sphere of the population.