Judge’s role for conflict resolution
The main motivation in the choice of the subject, lies in my academic position, being a law student, it is essential to investigate issues related to my career. Likewise, belonging to a circle of studies that analyzes legal issues, became a more incentive. And, mainly, because throughout my permanence in university, I have heard that there are no absolute truths, that all part of a motivation and/or interest of a group or individual, generally powerful, which is why, many social sciencesThey have chosen to dismiss the search for "truth" in their studies, they consider it unattainable or non -existent.
I want to verify if these thoughts can be transferred to the right, I recognize the importance of other disciplines, but I consider that the role of law is greater, while regulating the conduct of society, it sanctions (even restricting fundamental rights such as freedom),guides many public policies and, in short, is present directly or indirectly in the social future. Thus, to start with the formal work exhibition, I consider it pertinent to make two details. First, the analysis of the truth in the process will be scripted to the role of judge, because generally "in a process the parties in conflict rather than seeking the truth want to win".
That the judge fulfills his claim, therefore, they can manipulate or hide evidence, as well as lie and/or blackmail, threaten, among others;The judge is the only one who, in the case of including the truth in the process, would have this activity as an obligation. Second, in the course of the essay, key terms will be used as process, parties, judge, conflict and truth;The latter being the main axis of development, it is necessary to differentiate it from certainty, a term often taken as a synonym for the first, which leads to erroneous or imprecise interpretations. Thus, according to Dellepiane cited by Vargas.
"Certainty is a mental condition in which you have the full and perfect belief about something or someone, this may or may not coincide with the truth, in case it did not remain as certainty, but it is illegitimate". I can be certain about the red color of apples, for example, but a scientific test under the microscope can see, in fact, that color is a light brown. Continuing taking as synonyms, truth and certainty, helps to imagine an absolute truth and, therefore, unattainable, because the conditions on which a mental state (certainty) originates are not always coincident with reality (truth).
Other aspects are to pee are psychological, social, cultural, etc. Precisely, the first block of positions starts from this denial to the finding of absolute truth, confused with certainty. The basis of these positions is found in the statements of two authors: Carnelutti and Nietzsche. For the first, "there are two truths: a material or real truth (absolute) and a procedural truth," the latter is limited, as soon as its determination is provided by the parties in the course of the process. The second, affirms that "there are no facts, there are interpretations".
These interpretations start from particular interests and are established as true as they are satisfied. And, since there are as many interpretations as people in the world, it can be affirmed that everything is true, but also false. Therefore, it is not possible to establish as an end of any science so diffuse to specify. In that line, two models are formulated: the adversarial model and the procedural or ritualized model. Both consider conflict resolution as the main purpose of the judicial process, therefore, the search for truth is dismissed by not being indispensable to reach a solution.
On the one hand, in the adversarial model the parties will be the central protagonists, in them the determination of the facts that will be discussed in the process will fall, as well as the disposition of the evidence presented. For his part, the judge will be the impartial third who is prohibited from intervening directly in the conflict, his role is passing to passively verify compliance with the norms. The same, many authors have chosen to qualify this model as "Sporting Theory of Justice" or Sports Theory of Justice, to the extent that, the action of the parties and the judge in the judicial process is equalized, with the performance of teamsopposites and the referee in sports spaces.