Via Inveniendi Et Iudicandi (Jun 2016)
A comparative approach between the Colombian state council and the French state council
Abstract
The Colombian Council of State was established in 1817 by the Liberator Simon Bolivar, on the model of the French Council of State which was founded by Napoleon with the assistance of Sieyès in 1799. The establishment of such a Council in Colombia is the result of many imitative phenomena such as the mimicking; the juridical and institutional culture spread, as well as the juridical and institutional globalization. This analysis discusses the existing relationships between the Colombian Council of State and its French counterpart. Switching from one device to the other, we analyze the set up process in France of both a juridical and institutional technology, then imported, revised and even « made up » in Colombia. This analysis addresses the two traditional functions of both the French and Colombian Council of State: the advisory function (their original activity) and the juridical function. Both Councils apply their function of governmental Counsellors and Judges; which constitutes here their particularity in regards with their functional duality in the frame of juridical devices normally characterized by a juridical duality. Although imported, the Colombian Council of State remains an autonomous institution. It is more an inspired institution, rather than dominated, by the French Council of State. In order to gain a better understanding of the process of reinterpretation or creation of such a juridical device, this analysis focuses on two case studies: the case of the principle of protection of the legitimate trust and the case of the responsibility of the State for the judiciary administration; both in relation to the jurisprudence of the Colombian and French Council of State. Through this, one can notice that divergences and convergences can simultaneously be found between the two Councils of State.
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