Authoritarian legality and constitutional jurisdiction in Chile : continuities and ruptures in the formation of constitutionalism from the 1990’s

Abstract

The redemocratization of Latin American countries in the 1980’s and 1990’s was often accompanied by the promulgation of new constitutional texts, a fact that poses the risk of conflict with the legislation produced during the authoritarian periods. Not all countries in the region, however, face the issue of the permanence of authoritarian legality from the adoption of a new constitutional paradigm. Chile, in which the political transition did not lead to a rupture of the constitutional order, the confrontation of the theme of the validity of authoritarian norms did not have room before the restrictions of access to constitutional jurisdiction: only from the constitutional reforms of 2005 the Chilean Constitutional Court was raised to protagonist of the confrontation of this authoritarian legacy. The way in which the Court has faced the issue of the validity of such legislation is the main object of research, by investigating the legal solutions found to resolve the controversies regarding such rules, the indication 1) of the understanding of the role of the judges of the Constitutional Court in contributing to the overcoming of the prevailing normative production standards so far, as well as 2) of their willingness to manage the constitutional text with a view to consolidating the formal democracy regime established. This reflection involves an analysis of the decisions taken by the Court regarding the reception of standards and their institutional design forged in the political transition process. The hypothesis proposed was that, as occurred in post-war transitions with some Courts of European countries, the way in which the reception theory of such norms applies is connected with transitional experiences in terms of continuity or not of the authoritarian legacy. The results indicate that the application of the Reception Theory in Chile presents an outstanding result of that of the North countries.