The Veto Player's Repertoire

Authors

Francisco J. Urbina, Notre Dame Law SchoolFollow

Document Type

Article

Publication Date

2023

Publication Information

78 Zeitschrift für öffentliches Recht 481 (2023).

Abstract

An Analysis of the Chilean Constitutional Tribunal's Reasoning in Landmark Cases (1981-2019)

This study analyses how the Chilean Constitutional Tribunal's reasoning has evolved over time through a longitudinal examination of its landmark decisions. First, the article explains that, notwithstanding the constitution-makers' intent to estab­lish the Tribunal as a veto player, the latter became inclined to repeal legislation only after a substantial set of constitutional amendments inaugurated a new political cycle in Chilean politics and, among other reforms, changed the appointment process of the Tribunal and expanded its jurisdiction in 2005. Second, it shows that after the 2005 reforms, the Tribunal saw a deep transformation in its style of reasoning, adding to traditional formalist interpretative methods a new repertoire of methods, such as the proportionality test and the use of international law. Third, the findings indicate that, as it developed and deployed this new repertoire of reasoning methods, the Tribunal developed some pathologies that have weakened its reason-giving institutional func­tion. Examples of these pathologies are the elaboration of complex and unwieldy opin­ions and the inability to keep a robust system of settled judicial precedents. The study concludes that both the specific features of its institutional role and these jurispruden­tial pathologies contribute to the diminishing authority of the Tribunal.

Comments

https://doi.org/10.33l96/zoer202303048101

Recommended Citation

Francisco J. Urbina, The Veto Player's Repertoire, 78 Zeitschrift für öffentliches Recht 481 (2023)..
Available at: https://scholarship.law.nd.edu/law_faculty_scholarship/1578