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Comparative Law and Chile’s new constitution: call for contributions

Updated: Oct 13, 2021

Ernesto Vargas Weil, Editor of the Chilean Blog of Comparative Law

Chile is undergoing an unprecedented constitutional process. After the victory of the “Approval” option in the referendum held in October of 2020, the country is preparing itself to hold elections for the first constitutional convention in its history next April. Comparative Law has much to say and also much to learn from this process. On the one hand, Chilean politicians, scholars and public intellectuals are carefully looking to foreign constitutional models to develop their proposals. On the other, comparative and constitutional legal scholars from all parts of the world are closely following developments in Chile. The aim of this post is inviting all of them to contribute to the Chilean Blog of Comparative Law.

From the perspective of Comparative Law, the interest in the Chilean experience is twofold. First, it is well-known that Latin America has traditionally played a marginal role within this discipline. As a consequence of the historical predominance of the Theory of the Legal Families and its focus on Private Law, this region has frequently been depicted as nothing more than a secondary member of the legal family headed by French Law, with few original elements of its own to contribute to the wider discussion. The resulting virtual absence of the region from the global panorama has frequently been lamented in revisions on the state of Comparative Law (for examples, see Mathias Reimann, or Ralf Michaels), but progress in this regard rarely goes beyond that. The Chilean constitutional process is a good opportunity to start reversing this trend.

Second, the Chilean experience offers valuable empirical evidence for what many scholars see as the rising star of the discipline: Comparative Constitutional Law. Until the late 20th century, this was a research area with almost no formal acknowledgment because it was seen as too political and dependent on national particularisms to be an object of rigorous scientific analysis. However, starting in the 1990s, Comparative Constitutional Law has seen rapid developments, fueled by the democratic transitions of Central and Eastern Europe, South Africa and, more recently, the Arab Spring (on this, see the commentaries by Monica Claes, Vlad Perju and Mark Tushnet). According to Claes and Günter Frankenberg this has given rise to a “constitutional engineering” aimed at developing the best constitutional arrangement for a given historical contex. As a result, today 'no one begins writing a constitution from scratch'. This knowledge should be of great benefit to the Chilean process.

However, benefiting from comparative research is not as easy as it seems. On the one hand, as warned in a classical paper by Otto Kahn-Freund, Comparative Law does not provide a menu of ready-made institutions that can simply be transplanted from one reality to another without taking into account that they developed in different economic and cultural contexts. On the other, as described by Michele Graziadei, there is a frequent tendency to adopt foreign legal institutions for the wrong reasons, including simple historical influence, economic or political dependency, perceived prestige or internal political reasons. The well-known ideological nature of Constitutional Law appears only to deeper these difficulties.

In the Chilean case, a first difficulty is “where to look”. According to Frankenberg, even if modern constitutions tend to share universal features, these co-exist alongside profoundly parochial institutional arrangements that can only be accounted for by the particular history of each country. For example, simply looking at the economic dimension of Latin American constitution, Javier Couso accounts for ‘neoliberal’, ‘minimal’, ‘social’ and ‘Bolivarian’ models. Thus, despite being inspired by a broadly shared tradition, modern constitutions vary on relevant aspects. For example, in connection with economic rights, it is common to distinguish between two main traditions. The first, associated with the ideas of classical liberalism, sees the limitation of the State and the regulation of public power as its main purpose, with the US Constitution serving as its archetypical model. The second strand, frequently referred to as “social democratic”, prevails in Continental Europe and is characterised by attributing a more active role to the State, as a result of some constitutionally imposed duties and the aim of regulating the power unbalance between private individuals.

A second problem, which is already apparent in Chilean public discussion, is methodological. The proper use of Comparative Law requires going beyond black letter rules to understand the functions these institutions fulfil in practice. For example, K. D. Ewing explains that the practical differences between the liberal and the social democratic traditions should not be exaggerated. At least since the New Deal, the American Supreme Court has accepted legislative provisions aiming to protect weaker parties, while the Weimar Constitution - the historical forerunner of the modern social democratic tradition - acknowledged the right to freedom of commerce, industry, contract, property and inheritance, all of which was deepened by the European post-war constitutions, leading to an outcome not too far removed from the liberal tradition.

In this wider context, the Chilean constitutional process gives rise to an evident synergy between Chile and Comparative Law. On the one hand, the comparative method offers the Chilean constitutional assembly an invaluable reservoir of practical experience, which however, is not that easy to access without proper training. On the other hand, the Chilean constitutional process is already generating relevant empirical material for comparative lawyers interested in Latin America, Comparative Constitutional Law and Legal Transplants. The Chilean Blog of Comparative Law is a space to articulate such discussion. To learn how to contribute, please click here.

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