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Download 180 KB Texto completo en español More publications of: Fernando Atria More works in Estudios Públicos > Index by Number > Estudios Públicos Nº 71-80 > Estudios Públicos Nº 79 Estudios Públicos > Index by Subject > Politics > Politics and Government > Judicial System Estudios Públicos > Index by Subject > Politics > Rights Theory

This article sets out to question the current legal and political consensus on the benefits of a system of judicial review of constitutionality. Two major theses are put forward: firstly, that neither the theory of democracy, nor legal theory, nor the rule of law, nor human rights actually require judicial control over constitutionality. In other words, this issue is not resolved by conceptual considerations on the "true" meaning of the idea of democracy, law, etc., but by each country's political and legal experience and tradition. The second thesis is that, in the Chilean case, experience and tradition justify a high degree of skepticism as to the advantages of a system of judicial review of constitutionality. Finally, the article discusses the price that democratic politics has to pay for the increasing "constitutionalization" of law and politics.