Affiliation:
1. Associate Professor of Law, Universidad del Desarrollo School of Law, Santiago, Chile
Abstract
Abstract
Constitutional designers establishing a new judicial review mechanism can fail to make that mechanism a relevant instrument for checking the power of incumbent legislators or presidents. Judges may refuse to exercise their newly established powers, politicians may refuse to obey their rulings, or the judiciary may be packed, among other possible reasons. The causes can be attributed to the existence of a dominant party system, the lack of political competition, problems of institutional design, or judicial culture. This article contributes to the understanding of this problem by exploring the failed constitutional mechanism that Chilean constitutional designers established in 1925. The 1925 Chilean Constitution established the power of judicial review of legislation for the first time in Chile’s history, but the Supreme Court generally avoided to be involved in political battles. Chile had a competitive political system with frequent and regular rotation in power. The literature claims that, under these conditions, we should expect judges to be more independent and empowered, but this is not what happened in the Chilean case. Scholars studying this period of Chilean constitutional history generally associate the passivity of the Supreme Court with a legalistic culture promoting an apolitical and formalistic judicial behavior. This article claims that the narrative of judicial apoliticism served to justify, and perhaps to persuade, the Supreme Court’s choice not to intervene in politics, but more attention needs to be given to the institutional weaknesses of the judiciary of that time and to the possible strategic judicial choice.
Publisher
Oxford University Press (OUP)
Cited by
1 articles.
订阅此论文施引文献
订阅此论文施引文献,注册后可以免费订阅5篇论文的施引文献,订阅后可以查看论文全部施引文献