| Globalized western legal thought portrays the central legal figure as the judge; the legal core as human rights (ranging from individual and corporate private property rights to social rights); and the legal ideal as a pluralist society that recognizes and manages difference.1 The Chilean example seems to be at odds with this description.;In explaining the traditional approach to rights adjudication, this thesis concludes that either (1) the view that some rights are absolute and therefore limitless, or (2) the concept of rights only as rules to be applied according to a categorical deductive method, has left judges ill-equipped to interpret the 1980 Constitution through a democratic lens.;This dissertation offers an assessment of the reasons why the Constitutional Court will benefit from adopting proportionality analysis. This approach requires the Court to confront the fact that different interests in society may collide and the resolution of the conflict cannot rely on disembodied analyses of constitutional text. Rather, it thrusts the Court in into the role of balancing constitutional rights, the will of an elected legislature, the interests of society as a whole and the interests of individuals. This thesis uses the framework developed by the German scholar, Robert Alexy, in order to evaluate the use of the proportionality approach by the Constitutional Court. An analysis of the Court's recent judgments shows that Court has yet to apply the test properly.;In the coming years, the Court should make a cleaner break with the authoritarian past and articulate a more coherent vision of its role in promoting democracy and protecting human rights.;This dissertation outlines why this is so, through the judges' own "voices". Decisions adopted by the Constitutional Court since its creation in 1981 allow for an assessment of the role played by the Court in Chile's recent political history and in particular the role the Court has played after its full "democratic makeover" in 2005. The challenge posed (but not yet fulfilled) has been to achieve rights protection in a context of legal continuity with an authoritarian regime.;1Duncan Kennedy, "Three Globalizations of Law and Legal Thought: 1950-2000" in David Trubek and Alvaro Santos, eds., The New Law and Economic Development. A critical appraisal (New York: Cambridge University Press, 2006), at 66. |
