In the context of fragmentation that have been explained before, the idea of a new social contract flourishes. It takes form in the proposal - omnipresent in the national history - of a constitutional change (58). The 1991 constitution had this contractual justification underlying it. Like all the previous constitutions promulgated since 1863 (59), this one was not the result of a popular revolution, but rather the outcome of a partial social mobilization accompanied by a political governmental impulse, during a time of extreme violence due to the war against the Medellin Cartel. This political need of constitutional reform focuses on a new charter of rights as the base for a new social contract. Here again, the legal system - as it happens with the political and cultural systems - becomes a matter of consumption rather than a matter of regulation.

According to Alain Touraine (1988:137) in Latin America the political sphere is defined in terms of participation or nonparticipation instead of representation or nonrepresentation. Colombia is a clear example of this phenomenon (60). During the 80, the diagnosis of the Colombian regime focused on the close character of the political system (61); its opening was thought to be a necessary condition in overcoming violence. The constitution of 1991, keeping in mind that diagnosis, has introduced substantial changes in terms of democratic participation. A clear anti-clientelist tendency has prevailed at the National Constituency Assembly. The mechanisms of civic participation were then presented as a new democratic alternative whereby the noxious traditional patrimonialization of political life would disappear and new spaces of democratic participation would be cleared. Nevertheless, the first decade of the new regime has put in evidence the enormous difficulties in carrying out this transformation and, mainly the strength and complexity of the clientelist phenomenon.

The mechanisms of political participation devised by the constitution of 1991 have not been efficacious and it is not very probable that they will be in the future (García Villegas, 1977). The requirements imposed by the new mechanisms of participation (Constitution Article 103) are too complex and difficult to accomplish in a country characterized by weakness of the social movements (Touraine 1976:249; 1988: 135; Munera: 1999) and, in general, by the incapability of the citizens in articulating social demands outside the instances of traditional politicians.

Given the clientelist structure of traditional parties, the challenge implied in a campaign for representatives elected in public corporations appears to be easier than the challenge implied in each one of the participation mechanisms (plebiscite, referendum, legislative initiative, revokation of mandate, etc,). Indeed, the percentages of votes demanded by the "law of participation" are much too high and thus discourage political mobilization. In these circumstances, the traditional partisan dynamic absorbs any other type of political enthusiasm (62). This conclusion is deduced from the electoral data presented by the [National Registration Agency] : for 1994, the electoral census regarding Congressional elections was of 17,722,980 votes. The effective voting was from 6,221,423 votes. The senator with the highest vote (Fuad Char) obtained 79,917 votes, while the senator with the lowest rate (Red. H. Eli) obtained 18,049 votes. This last number is very low and, therefore, very attractive compared with the 5 per thousand of the electoral census (89,000 votes) required to start a referendum or a legislative initiative (Article 10 Law 134 of 1994).

The opening of the political system was conceived of under the assumption of a renovation of political activity - due to the revocation of representatives in the Congress - which never occurred. Once the sanguineness of the political moment produced by the constitutional change passed, participation loses its initial impulse and the traditional forces find accommodation in the new institutional forms. An example of this phenomenon is appreciated in Bogotá, where the traditional parties reconquered almost all the newly created Local Administrators Committee. These new organizations reproduced the personnel and the practices from the old Committees of Communal Action, which were dominated by the clientelist dynamic (Gutiérrez, 1966: 44).

The current Colombian constitution contains the widest and most progressive catalog of social rights among Latin American constitutions. The social rights thus established in 1991 reflect the victory of political majorities guided by the idea of social constitutionalism, which has been very influential in the Spanish and German current charters (63). The process of application of such progressive norms has not been an easy task. Although Congress is the natural instance for the implementation of social rights (Friedman, 1967) it couldn’t accomplish its task; in part because the progressiveness of the legislation about social rights is determined by the availability of economic resources, which are linked to the improvement of the national economy, and also in part, because the weakness of political representation. The efficacy of these constitutional norms is therefore almost void. Structural economic factors during the 1990’s have prevailed over the new constitutional rules.

Courts are also supposed to apply social rights. Here the situation has been more complex. Since the implementation of social rights entails a redistribution of economic resources - which is rather a legislative matter - the intervention of judges is perceived as being illegitimate. Judges are very aware of this limitation and they consistently interpret and apply social rights’ norms according to institutional possibilities affecting the least division of powers and economic institutional stability. The Judicial enforcement of such rights ignores - it doesn't have another alternative - the civil strange society (a third part of the population) although being the more needed. Judicial decision restricts their application to public services users. In practice, judges protect only those who - located in the intermediated society - are already engaged in a relationship with a public service company, and whose benefits are threatened. The judicial protection of social rights is therefore converted in a sort of administrative protection linked to legislation instead of being connected to the constitutional norm (Rosenn, 1990:26, Garcia-Villegas, 1997).

The constitution of 1991 attempted to increase contractualization through the implementation of social rights. Nevertheless, only in the judicial realm have those norms had some effectiveness, especially regarding equality of rights in children, minorities, and people suffering physical disadvantages (64). The nonattendance of the Congress reveals the lack of the implementation process intended by the 1991 constitution, and displays the difficulties of making social changes exclusively through judicial institutions (65). Nearly one decade after the promulgation of the new constitution, hopes of social change have decreased steeply (66). Amid unquestionable benefits, two important limits of the contractualization project through the judicial branch show up: 1) The processes of social contractualization depend mostly on the political government impulse upon legislation; however, this political impulse is bound to the economic sphere and thus to the global constraints, 2) Contractual incorporation of marginal people is very rare and limited to very particular and dramatic cases.

In circumstances of weak political representation - although strong participation - such as those which took place in 1991, the promulgation of new and progressive rights rather than being harmless for the current dominant power becomes a useful strategy of legitimation (67). The weaker the political representation in Colombia the stronger the juridification of social rights or, in Bourdieu’s terms (1994), the weaker the political capital in Colombia the stronger the need to increase the symbolic capital through the production of legal discourse. There is a sort of "structural homology" (Bourdieu and Wacquart, 1992: 105-6) between the social disembededness of the Colombian political field and the social disembededness of its legal field, or, in other terms, between the politicization of social life and the constitutionalization of rights.

Colombia has lived most of its history under the rigors of violence. This bloody past has shaped its institutional structure and its political culture. The priority of public order policy, has led to the overestimation of the Army and to the imbalance of the constitutional equilibrium. This fact has been possible thanks to the almost permanent use of the state of emergency - or exception - since 1949 (68); i.e. thanks to the normalization of the exception (69). If the periods under which the country has remained in a state of exception during the second half of this century are added, they total 36 years of the 48 elapsed up to 1998, three quarters of the time.

Violence has been growing concurrently with the repressive apparatuses of the State and specifically, with the state of exception. The substance of the exceptional law has varied but its general picture shows its constant enhancement, not only in terms of the number of norms, but also in terms of the number of aspects of social life which have been colonized. The more it has prescribed and detailed with sharpness all the manifestations of crime, the more this crime has been reproduced and recreated everywhere (Foucault, 1975). The exceptional law in Colombia is a kind of mirror of reality. How can we explain this ongoing increasing parallelism? Is it perhaps the uncontrolled broadening of violence - overflowing all legal statement - that determines this inefficiency of the exceptional law? This explanation is the most common and shared. Nevertheless, we consider that frequently it is rather the opposite that happens: it is the exceptional character of the law that explains the reproduction of violence. In other words, the increase of violence is due not only to the social conditions in which it occurs, but also to the nature of the institutional apparatus by which it is controlled.

Governments - backed by political parties with vague popular support - lack the political capability, the hegemony, needed to counter the multiple expressions of social and institutional violence. This inability has, at least, three effects: a) there is an institutional tendency to resolve problems of public order through purely legal criminal reforms; to the increasing demands of security, governments respond with the promulgation of exceptional criminal norms; the inefficacy of each exceptional set of norms leads to the promulgation of another one and so on; b) a culture of exception is, in this way, spread out on all institutional levels; and c) based on the inefficacy of the exceptional law, members of the armed forces and security agencies transgress the legal frame - although exceptional - and violate human rights with full impunity. This process of communication between citizens’ claims and government law prompts a change of scale between the nature of the problem and the nature of the answer (Santos, 1996: 456) (70). A problem characterized by the lack of contractualization among the social forces is treated merely with a criminal and legal approach, which doesn’t change anything but the routine of bureaucracy and the enjoyment of fundamental rights (Santos, 1994: 277) (71).

The described circumstances create and reproduce the violence that the State tries to control: the blooming inefficacy of the exceptional law, on the one hand, gives rise to an increase of armed confrontation - each group thriving upon the weakness of the State - and, on the other hand, implies the proliferation of human rights violations by militaries, many of them trying to win the war whatever the cost. Therefore, the State becomes deinstitutionalized and implicated in a pre-contractual war of all against all.

In this confrontation of armed groups, each one with different interests, discourses and goals, the violence against the population frequently has a diffuse and uncertain origin, which is profitable for those who exert violence (Rubio, 1997c). The civil population is trapped in the middle of several types of struggles in which all capitalize upon the confusion. This lawless type of violence disarticulates almost all attempts at social and political mobilization (...). Whereas in the military regimes in Latin America during the 80s the latent presence of the social enemy facilitated civil union and even heroic actions in order to overthrow the enemy in power, today in Colombia the presence of multiple and confused enemies - not only within the institutional sphere but also in the social sphere - discourages the intent of social mobilization and reduces social practices to individual strategies like "every man for himself". So, the vicious circle is completed: crisis of political activity institutional weakness regime of exception dirty-war and human rights violations desinstitutionalization, state fragmentation and judicial crisis anomie and social heterogeneity and finally again - crisis of political activity.

A more theoretical understanding of this vicious circle is this: Social practices determined by the law are characterized by a tension between two types of relations. The first one combine state domination through emergency norms, consciousness of domination and deviant behavior. The second one joins rule of law, consciousness of legitimacy and political participation. Elements of this dichotomy have specific relations in each country. In Colombia, for instance, the increase of domination through the state of emergency has increased violence and illegal behavior. Conversely, the relation between the symbolic transformation of the rule of law -through constitutional reforms - and political mobilization has been much more weak and contingent in Colombia. Our hypothesis here is that the institutional excess in the use of the state of exception between 1957 and 1984 and the consequential increase of violence weakens both the symbolic power of the law and political agency

The state of emergency has configured an exceptional penal law: the liberal idea of the criminal - with its implications in terms of due process - has been replaced by the warlike idea of the enemy (Ferrajoli, 1995:822) (72). The normalization of the state of emergency has diffused a culture of exception, an environment (73) of rule-of-force opposing the rule of law, eroding legitimacy, despoiling sociability and thus, affecting the basic compliance needed for the efficacy of law (74). Two faces can be differentiated regarding this culture of exception: institutional and social.

As for the institutional face, during the 1970s and beginning of the 1980s, the army and the security state agencies obtained prerogatives which are usually owned by military regimes and, for that reason, exempted them from the political costs inherent in the direct exercise of power. Since the mid-1980s, and especially since the constitution of 1991, these prerogatives have been drastically limited (Uprimny, and Vargas, 1990:114) . However, violence and the violation of human rights have been aggravated. This is due, partly, to the fact that some militaries and officials have perceived democratic reforms as being obstacles blocking the military strategy against guerrillas. Thus they have preferred to abandon the legal management of the public order with all the implications regarding human rights violations. From the culture of the exception the country has jumped to the culture of dirty-war, which reveals the shortness of the space between the state of emergency and the absence of the State, as the space between the exceptional law and the absence of law is also very short in practice.

Colombia experienced a process of fragmentation and institutional deterioration which gradually moved from a situation in which the constitutional abnormality had prevailed - until the mid-1980s - to a current situation of unrestrained proliferation of armed groups administering justice (75). Paradoxically, this process has been accompanied by governmental adoption of an explicit policy for the defense of human rights, since the middle of the 80s, which complicates the impact of the accusations against the state coming from NGO’s and human rights organizations (Sikkink 1996: 79).

The culture of the exception was significant in this rejection of the law: government employees - especially those whose tasks are related to the public order - frequently perceive legality as an additional tool of war instead of as an inherent limit to their functions (Ost, Van de Kerchove, 1987) (76). This instrumental understanding of law (Thoumi, 1995:172) is very widespread not only in the institutional sphere but also - and this is the second face of the problem- in civil society from drivers’ behavior in big cities to the creation of paramilitary groups, including family, sport, and almost all kinds of rules governing social life. It is especially serious when arms are used to apply private justice (Jaramillo, 1997) (77).

The use - and abuse - of the constitutional exception may be understood as a Colombian State’s answer to the crisis of the social contract (78). Douglas Hay (1975) explains a similar strategy implemented by the ruling class in eighteen-century England. He focus on the justification of capital punishment and on the failure of criminal reforms proposed - by Beccaria and others - to obtain more lenient and certain punishments. In another paper, Hay (1992) suggest that "the violence of the state may be a powerful determinant of violent in society (...) " Highly public, state sactioned death is a powerful reinforcement, at the very last, for resort to violence throughout a given society..." (152-153). A similar point of view is defended by Robert Weisberg (1992) who argues that, in fact, "much crime, rather than offering a general moral counterclaim to society’s vision of the good, is a directly parallel and purportedly supplementary form of moral claiming and indeed, law enforcement".

The crisis of contractual presuppositions gives rise to conflicts and tensions within the State. The crisis of metacontractual presuppositions also affects the relationships between organisms of the State. The tension between military and government - although having a long history of shared interest - is not confined to operative matters but rather a disagreement on the very concept of democracy. According to retired general Landazabal Reyes, for example, "The usurpation of the direct control of the army by the political boss destroys the primary foundations of any democratic organization, the one that starting from that moment begins to slide toward the roads of tyranny (79) (Landazabal 1993: 49). A notable example of this conflict came out in November of 1985 when the guerrilla M-19 took over the palace of justice. A conflict arose between President Betancurt and the commander of the army, who, seemingly, decided to advance the eviction operation without the consent of the President (80). More recently, President Samper has had public confrontations with the army’s commander-in-chief, General Harold Bedoya, who finally announced - from the army headquarters - that he had decided to resign and to run for president during the 1998 campaign. The number of military defeats of the army against the guerrillas since 1997 has accentuated these tensions. Similar conflicts, although less serious, have appeared not only between the Constitutional Court, on one hand, and the Supreme Court and the Council of State on the other hand, but also between the government and the Fiscalia (Nagle: 1995). These conflicts arise from the definition of public goods. The interinstitutional disagreement emerges when the prioritization of public goods is in question. The military, for example, always subordinates political values, like legitimacy or social welfare, over security values. The courts, on the other hand, usually reduce legitimacy to legality and subordinate all other public goods. The government usually acts strategically according to the political necessities of the moment.

1.Social inequality in Colombia is one of the highest in Latin America. Clientelist practices, institutional patrimonialization and the legitimacy of traditional political parties are still endemic problems in Colombia. Although the collective identity doesn’t represent an important problem its low intensity doesn’t help very much either. However, since the middle of the 1980s, these public goods problems have been overshadowed by violence and insecurity. Colombia has the worlds highest rate of homicides and the state faces somehow three kinds of wars: narcotraffic, guerrilla and common criminality.

2.Additionally, the hasty secularization of society, the incidence of some globalization process and the deterioration of the provision of public goods, especially security, accompany the erosion of metacontractual pressuppossition.

3.In Colombia, social conflicts are not translated into the political field and therefore the social and the political are severed from one another. Although this is a common trend in semi-peripheral countries - derived from the lack of isomorphism between the space of production, the space of community and the space of citizenship - this situation is aggravated in Colombia due to the pervasiveness of violence and its disaggregating effect on the political practices.

4.In these conditions political discourse acquires great volatility and political struggle becomes easily exacerbated. The centrality of this politic-uprooted or politic-pure has at least two implications: 1) the political arena is distinguished by the great symbolic character of its political language: the original sense of social interests remains forgotten in the intricate tangle of discursive divergences and 2) state policies are characterized by the lack of hegemony and difficulties in dealing with an solving problems in their own dimensions or scales.

5.The political field, the cultural field as well as the legal field, rather than spaces of citizenship, identity and regulation are spaces of consumption where the symbolic dimension of social relations between actors is predominant and the collective memory does not last.

6. In core countries the social contract has been materialized through three institutional devices 1) the socialization of the economy; 2) the politicization of the State; and 3) the nationalization of cultural identity. Neither the socialization of the economy through the welfare State, nor the nationalization of cultural identity have been essential factors of contractualization. The politicization of the State, although, being the most important institutional devices, represent a special type of politicization which is a weak politicization combining excessiveness of power in the executive branch with a notorious political incapacity.

7.The Colombian State tries to replace its political and institutional impotency with a strong legal and especially constitutional presence. The ruling class has carried out a two fold strategy: 1) They have resorted to the constitutional reform in order to create a new social contract which, unfortunately, goes a little further from the symbolic an ephemeral eagerness fulfilled by the act of promulgation and, 2) They have imposed the state of emergency almost permanently. However, given its political weakness, Colombian governments have enormous difficulties in implementing solutions through the legal system; the inefficacy of political and social reforms, on one hand and, and the abuse of the state of emergency, as well as its inefficacy, on the other hand, have diminished the rule of law, increased the violation of human rights by the army, and spread out a culture of violence all over the Colombian society.

8. The current crisis of contractualization in Colombia has been a propitious environment for the sprout of social fascisms. Institutional fragmentation and widespread violence are especially favorable conditions for the expansion of insecurity and parastate fascisms. They are directly related to the existence of the state and its capacity to exert imperium. But this is only part of the picture of abandonment and vulnerability affecting individuals in Colombia; social and economic domination is also pervasive, especially in urban spaces, under the fascism of parallel State and the social apartheid.

In Colombia the dichotomy social anarchy/state order interact with the dichotomy oppression/emancipation. In fact, the combination between factors of these dyads allows for a differentiation between the following situations: 1) State/oppression, which is the conventional class domination in liberal states; 2) anarchy/emancipation, which pop up in some cases related with guerrilla movements, militias and popular movements; 3) oppression/anarchy, which can be associated with paramilitary groups, and also can be related in some cases with guerrillas and other armed groups, and 4) emancipation/state which happens some times in decisions taken by the Constitutional Court or eventually by local governments. This spectrum of possibilities show up the complexity both of domination and emancipation in Colombia

Notes
(53) The welfare system created in Colombia - starting from 1936 (Melo, 1992: 155)- did not entail the type of contractualization which took place in the core countries: a contractualization between the organisms of capital and of work under the guidance of the State.
(54) According to Habermas (1971:101), legitimacy, in European liberal states from the middle of XIX century, doesn't derive -as it happens in "traditional societies" - from an institutional structure that provides sense and validity to social practices, but from the market and its implicit idea of equivalence. The system operated under the assumption of state neutrality. This situation changes with the appearance of dysfunctions owed to free change, which give rise to the introduction of the Beneficent State or Providence (Habermas, however doesn't keep in mind the fact that, beyond those dysfunctions, State politicization was due to the emergence of the labor movement). In these new conditions, a repoliticization of the State takes place. In Colombia, such politicization never existed, neither did such a market.
(55) Even more, from this inclusion of the indigenous people in the social contract, the dominant elite has found symbolic benefits, in terms of legitimacy, much more important than the risks derived from that partial contractual inclusion.
(56) For the idea of "weakness of the Colombian State" see Daniel Pécaut (1993: 267 y ss). In Hobbesian terms, this weakness has the following three manifestations: 1) lack of capacity to exercise coercion and impose obligations (imperium), 2) lack of capacity to contain the armed internal conflict, and 3) dependence on international restraints (globalization). The first of these manifestations is characteristic of a pre-state situation; the second of an anti-state situation and the third of an inter-state This difference is proposal by Norberto Bobbio interpreting Hobbes’ explanations (1958:97)
(57) According to Bourdieu (1987:96 ) "plus une situation est dangereuse , plus la pratique tend a etre codifiee (...) Plus la situation sera grosse de violence a l’etat ptentiel , plus il faudra mettre de formes, plus la conduite librement confie aux improvisation de l’habitus cedera la place a la conduite expresement regle par une rituel methodiquement institue, voir codifie"
(58) Not only in Colombia but in Latin American countries, See Rosenn, (1990:31)
(59) Colombia had 10 national constitutions between 1810 - the year of its independence - and 1886, when a new constitution was promulgated that lasted for 105 years. The constitution of 1886 had sixty-seven reforms. On the topic of constitutional reformism, see Hernando Valencia Villa (1987:43).
(60) For the symbolic character of the political participation in Colombia see Uribe, Maria Tereza (1977); Restrepo, Luis Alberto (1997); García Villegas, Mauricio (1997) and Múnera, Leopoldo (1999).
(61) See, for instance, the report published by the so called group of violentólogos (experts on violence) under the title : Colombia, Violencia y Democracia (1987); this book had much institutional importance during the last part of the 80s.
(62) On the restricted character of the electoral census, see Carlos Ariel Sánchez (1993: 187-207).
(63) L. E Nagel (1995) points out the French influence in Colombian institutions. She contrasts the Colombian history since colonial time with the American history and tries to show how different those processes are and how important the lack of administrative experience was for revolutionary people (for this matter, see also Rossen, 1990). However, in the analysis of the present, Nagel underestimates the importance of German and Spanish influence in the constitution of 1991; this misinterpretation leads her to a wrong comparative analysis between current American and Colombian constitutionalism.
(64) According to David Trubek (1977) the legal system must provide some benefits for subordinate groups or it would not be accepted as legitimate; see also, Gordon (998: 647). For progressive decisions at the Colombian Constitutional Court, see the following : T-406/1992, [completar]... For a critique of this kind of judicial activism in recent years, see Orozco Ivan and Gomez, Gabriel (1997).
(65) According to Galanter (1974: 135) " those who seek change through the courts tend to represent relatively isolated interests, unable to carry the day in more political forums"; and concerning the limits of progressive adjudication, he says : " even the most favorably inclined court may not be able to make those rule-changes most useful to a class of "have-nots" (137); not to mention the mere symbolic effect of some judicial decisions concerning marginalized people (138) (Garcia Villegas, 1993: ...). See also Howard. J and Woodford. Jr (1969).
(66) See Analisis Sociojuridico de la justicia en Colombia...(Garcia-Villegas. 1997); This empirical research about constitutional cases of tutela- which is the judicial action steered to the protection of fundamental rights - demonstrates how strict social rights decisions - those involving an economic grant - have represented only 2.6% of the total tutela-decisions in the whole country since 1992.
(67) Legal inefficacy cannot always be understood as the consequence of the resistance of social phenomenon to comply with norms but as the cause embedded in the norm itself which deliberately takes for granted the complexity of the social phenomena. To some extent the constitution foresees and looks for its own inefficacy. So, instead of asking for the causes of the failure of law, it may be asked: to what extent does such a failure explain a power situation in which the legal norm plays an important role? (Garcia Villegas 1993: 82). The production of law does not always obey efficiency reasons. Very often cultural environment determines the promulgation of norms as symbols. According to Edelman (1992:1535), law creates a ‘legal environment’ that consists not only of law and the sanctions that are built into law, but also of societal norms and culture associated with law" (see also: DiMaggio and Powell 1991; 1994). Law as symbols creates also new social relations (for the constitutive character of symbols, see: Friedland and Aldford in Di Maggio and Powell 1991); for the uses of law as political symbols see Scheingold, S.A. (1974), Edelman, Murray (1964) and Shklar, J. (1964); for an even more radical critic of rights see Tushnet, (1984:1392). Speaking against the rhetoric of positive rights, Tushnet (1984: 1392-93) argues that "By abstracting from real experiences and reifying the idea of rights, it creates a sphere of autonomy stripped of any social context and counterpose to it a sphere of social life stripped of any content". A more concrete explanation of the discrimination resulting from the civil rights legislation in Bumiller (1987). For an specific explanation in the symbolic use of norms by governments in Colombia during the period of the war against narcotraffic see Garcia-Villegas M. (1993).
(68) See Garcia Villegas (1997)
(69) Here it is possible to apply what Bourdieu (1987:97) explains for the cultural field: "S’il fallait proposer une définition transculturelle de l´excellence, je dirais que c´est le fait de savoir jouer avec la regle du jeu jusqu´aux limites, voir jusqu´a la transgression, toute en restant dans la regle".
(70) According to Rangel (1998) one of the institutional obstacles in relation to the guerrilla and the narcotraffic is its perception of both as one problem which need two different solutions.
(71) The activity of the State - in Habermas’ terms - is reduced to an instrumental rationality which, due precisely to that reduction, becomes useless; the efficientist and techno-bureaucratic emphasis leads to the ineptitude of the State. In these circumstances, the law, as the dominant discourse, is more and more marginal in its achievements (Habermas, 1971: 93).
(72) For a different point of view see Orozco (1992). According to Orozco, the law of war - based on a state/enemy perspective - governs conflict between armed groups that are somehow equally considered; so rebels are treated with a sort of ethic neutrality, which leads to low sentences. Terrorists, instead, are overcriminalized because they are judged through penal law norms which are based in a state/criminal view. Orozco’s understanding is still important as a defense of the application of the DHIL in Colombia and doesn’t diminish our argument vis-à-vis the enforcement of exceptional norms.
(73) According to L. Edelman and M. Suchman (1996: 924), the state as well as organizations are responsive to, and constitutive of , the rule environment. See also the idea of "cognitive environment of organization" in L. Edelmen (1990).
(74) For the relation between values and obedience of law see Tyler (1990:161), Braithwaite, (1989: 101), Schwartz Richart D. &Orleans Sonia (1967), Berkowitz L. & Walker N. (1967). An opposite perspective is developed in the so-called "rational choice studies", for instance: Antunes George & Hunt (1973) and Gibbs (1986).
(75) See, Human Rights Watch (1998:86) and Department of the State Report….(buscar titulo) 1997. For information about massacres in Colombia and armed groups involved see, Uribe, María Victoria and Vasquez, Teófilo (1995). For information about the war in the emerald region see, Uribe, Maria Victoria (1992); for information about social cleansing see Schwartz (1995).
(76) This is not a Colombian exclusive phenomenon; see for example Nino (1992) and Garzon Valdez (1993) and O’Donnell (1998)
(77) The civil groupings of armed defense, so-called "Convivir" created by the government, entail a confusion between the combatant and the civilian and thereby between law and war (Human Rights Watch, 1998: 88).
(78) Hay argues that criminal law was as much concerned with authority as it was with the protection of property. Combining three elements: 1) majesty (the spectacle of punishment as a symbolic power), 2) formalistic interpretation of rules and inefficacy, and 3) Mercy (50% were pardoned), criminal law was implemented as an ideological tool. "Criminal law -He explains- more than any other institution made it possible to govern eighteen-century England without a police force and without a large army. The ideology of the law was crucial in sustaining the hegemony of the English ruling class. This argument, if sound, helps us to explain their resistance to suggestions for drastic legal reform" (p. 56) Another very important element for maintaining hegemony was patronage which created vertical chains of loyalty. "Social control in the eighteen century seems a gentle yoke from this perspective: a spontaneous, uncalculated and peaceful relationship of gratitude and gifts" (p. 62) (...). "Eighteen century in England was not a free market of patronage relations. It was a society with a bloody penal code, an astute ruling class who manipulated it to their advantage, and a people schooled in the lessons of Justice, Terror and Mercy. The benevolence of rich men to poor, and all the ramifications of patronage, were upheld by the sanction of the gallows and the rhetoric of the death sentence' (63).
(79) In Colombia - as it is in most of Latin American countries (see Rosenn, 1990:29) - it appears to be normal that comanders-in-chief give their political opinions, especially when these are bound to problems of public order. Once retired, some generals become prestigious columnists in newspapers, publish books and give conferences on national politics. This was the case of General Landazabal who was an active member of the Conservative Party and was murdered in 1998 apparently by an extreme right group.
(80) On this dramatic event see, Procuraduria General de la Nacion (1986), Hernández, G. (1986) and Carrigan, A. (1993).