From the retributive formalism to the new conception of restorative justice in Colombia since the 1991 constitution

Abstract

In this article we try to show that the idea of a retributive justice in Colombia, as the only way to achieve the solution of conflicts, obeys cultural patterns originating from legal and academic spheres. Therefore, a reflection is made on the insertion of the formalist model and its impact on the formation of lawyers and society. The theories proposed from the academy are the result of the legalistic (Roman-Germanic) tradition that the Colombian nation gathers since its genesis as an independent legal order. Taking into account the above, it is established that the application of penalties has not generated social peace and, in addition, the Colombian State has not sought a form of peace other than the abandonment of arms. After the Constitution of 1991, the current concepts in the Colombian legal system were changed. This change of conception influenced the idea of justice that seeks the restoration of the victim and not the nature of the crime or its high level of punishability. The Constitution bases this change on its principles, values and goals, specifically on human dignity and peaceful coexistence. In this way, the issue of restorative justice is addressed as a fundamental element for the resolution of conflicts in Colombia. Restorative justice allows for stable peace and guarantees social reconciliation.