Resumen

GODOY PROATTI, Elaine. La conciencia y los embates subjetivos y jurídicos de la función del juez en la América Colonial del siglo XVII. Rev. hist. derecho [online]. 2014, n.48, pp.143-164. ISSN 1853-1784.

It is our objective to present as, in accordance with a Franciscan theologian Fray Miguel Agia, Vice-King Don Luis de Velasco, in its function of judge and executor of the regal laws, is an important personage in the legal Colonial Indian dynamics, mainly because he had that to analyze the circumstances of each case and in function of them, and not only of the laws, added or decreased legal penalty, as criteria and decisions of its exempt will. Inside of the necessities it could, casuistically, be considered the colonial customs, habits, distance and complexities so that the laws, to coexist with such reality, were adjusted. In this scope, we will also demonstrate as the Moral Theology has a decisive function in the delimitation and definition of the circumstances and situations that would make it possible the modification of the norm. Jurists, doctors in moral theology and right were looked to guide and to solve situations and facts. This way, we will approach the moral questions of the legal ones when demonstrating, through a concrete example of interpretation and analysis of a theological work, Hermann Busembaum, that the moral theology guided the legal decisions in way to the multiple opinions and controversies that conferred legal unreliability and that the practical morality and the legal one were not separated in century XVII.

Palabras clave : Conscience; Doubt; Casuistry law; Justice and moral theology.

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