The French legislator was very wise to establish in a legal precept – collected by the Dominican Law No. 834 of July 15, 1978 – that there is no nullity without text and, above all, there is not without tort. The raison d’être of such a provision is to safeguard what is legitimately fundamental, above what is superficial.
The legal maxim pursues that the frivolous does not prevail over the essential to preserve the legal interest and the prerogative that underlies behind it, in an effort to prevent a procedural act from being declared without effect due to some irregularity, if no one has been affected or has been caused harm to the person who invokes it. In short, it is not sacrificing the subject for the object, prioritizing the transcendental.
Despite the fact that this principle gives preference to what is truly important, in many administrative and judicial processes there is an insistence on betting on the insignificant and being distracted by what is apparent, the substantiality of the right is neglected, as a legal asset to be respected, above the formalities. With the pernicious practice of going off on tangents with trifles, the process is being saved, forgetting about the processing.
Puerile arguments under the pretext of legal compliance violate values as sacred as justice, postpone their application and are the main cause of multiple shipments that hinder the outcome that society demands. The judge cannot be imprisoned between rules that prevent him from advancing and pride himself on maintaining due process or entangled in a tangle of legal statements. Choosing the appearance to what should be constitutes a cosmetic exercise that deprives the legal norm of its rationality and effectiveness. The excessive guarantee is strangling the law, when preference is given to what is outside and it is forgotten that what is fundamental is inside.
It cannot be possible that the violated right is wrapped in several layers of cellophane that prevent it from reaching the heart for whose beating it has gone to court. That the search to assert a faculty has become a labyrinth of requirements that, far from protecting the interested party, distance him from his claim. The usefulness of a provision would then have to be questioned if, although attractive to the eye, it only hinders its purpose; It’s time to remove the blindfold from the goddess Themis so that she can see better.
The entrance background or form was first published in The Caribbean Newspaper.
