The Constitutions

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the personal service were abolished and, thus, the idea of the Indian as a legally incapable was also abolished. This is the situation during the early nineteenth century, when under the political sign of the independence movements and the drafting of the first constitutions, the relationship between law and politics is, for the first time, problematized.

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Something similar happened with the constitution of 1818, which, in spite of indicating personal freedoms (Title I, article 1) and a principle of Habeas Corpus (Title I, article 3), the powers granted to the Supreme Director were considered

“dictatorial” (Galdames 1925: 505). Although this constitution provided specific judicial functions for the courts, it indicated the need to ask the Senate, in certain cases, to provide solution in cases of conflict with the current system of government (Title V, article 2). That is, the courts should consider “goal programs” (Luhmann 1987) in their options, according to the current political situation.

Later, both the “moralist” political constitution of 1823 – which lasted only “a few months” (Eyzaguirre 2004: 74) - as the federal acts of 1926 and the “liberal”

constitution of 1828 essentially share the problem of the political organization. In all these cases, in spite of their diversity, the problem was solved using the formula of the “constitutional State” (Palm 2005: 172ff). From a comparative point of view, this period can be seen as an evolutionary stage of variations concerning the legal problem of the constitutional form to adopt. An oversupply of constitutional possibilities is produced and a pressure for selectivity gradually grows. This phase of constitutional variations becomes juridically stable in 1833, with the enactment of the constitution of the same year, and which stayed in force for more than ninety years.

The constitution of 1833 is, from this point in time, an evolutionary acquisition with long-term consequences.¹⁰⁹ This constitution also marks the beginning of the political stabilization of Chile, which will not suffer important institutional ruptures for over sixty years. The constitutions are mechanisms of a structural coupling between the legal system and the political system, and thus have effects on both systems: “The novelty of the constitutional concept of the 18th Century is that the Constitution provides a legal solution to the problem of self-reference of political system and at the

109 In the traditional historiography the name of Diego Portales is immediately mentioned. See Gongora (1981).

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same time a political solution to the problem of self-reference of the legal system”

(Luhmann 1990b: 202).¹¹⁰ This implies that the constitutions already suppose a differentiation between law and politics, and react to this differentiation (Luhmann 1990b: 179f.). This can be argued in the Chilean case only by accepting a set of nuances, for example, that while the constitution observes this distinction, since it defines differentiated functions for the judiciary and for the other political powers, it is only in some cases that it is established with relative clarity the autonomy of the law. Also, during this process that we have called ‘variations,’ most of the constitutions contemplate the use of “extraordinary faculties” of the political power and a possible “suspension of some articles of the constitution” in favor of that power (Palma 2005: 183), which was modified only by the end of the nineteenth century in the framework of the constitution promulgated in 1833 (Campos Harriet 1956: 479ff).

The constitution of 1833 is only the first stabilization of the constitutionalism, but this means neither its greatest perfection nor a better situation. By far, the constitution of 1833 stayed in force for nearly a century, surviving the civil war of 1891, and represented the increasing differentiation of Chilean politics. In the context of this constitution, the Chilean political power was organized, i.e., the “republic”

(Campos Harriet 1956: 473ff.). The figure of the “president” as center of the power is also consolidated and his limits and attributions are defined (Bravo Lira 1996:

30ff).¹¹¹ In this period, the Chilean political parties emerge, which some historians as Eyzaguirre (2004: 117ff) attribute to the so-called “question of the sacristan,” a problem of jurisdiction between the Catholic Church and the State.

110 “Die Neuheit des Verfassungskonzepts des 18. Jahrhunderts liegt darin, daß die Verfassung eine rechtliche Lösung des Selbstreferenzproblems des politischen Systems und zugleich eine politische Lösung des Selbstreferenzproblems des Rechtssystems ermöglicht.”

111 Alberto Edwards (1945: 271) indicates, as an element of institutional stabilization of Chile, the aristocratic resistance to the monarchy - the “frond” -, where “constitutions had little or nothing to do.” But Edwards does not refer to the political system, but rather to the vague concept of

“institutions”.

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As noted by Bravo Lira (1996: 44), the ‘parliament’ is a political institution that only appears in the nineteenth century in Chile, while the figure of the ‘president’ is much older and dates back to the judicial presidents of the colonial period. The constitution of 1833 defined broad attributions to this power and by the end of the nineteenth century, this power should be limited through liberal constitutional reforms.¹¹² The contemporary sociology of law has also criticized this excessive

“presidentialist” character that stems from this tradition and the loss of legislative functions of the parliament, which “no longer exercised legislative power but in the shade, under the dependence of another power, the Executive” (Cordero 2002:

511). For some authors, this “centralist” and also “ritualistic” character – in an obviously negative sense - is a general feature of the Latin-American legal systems (Witker and Nataren 2010: 13, Binder 2007: 14ff).

Chilean law received important stimuli during this period of constitutionalization.

The Spanish law was losing legal validity by the enactment of the so called

“Marianan acts” in 1924 and the successive codifications of Chilean laws initiated in 1855 with the civil code, and followed by the commercial code in 1867, the mining code in 1874, and other enactments by the end of the nineteenth and early twentieth century.¹¹³ Nevertheless, this process has contradictions. All the constitutions, from 1833 until 1980, considered “exceptional” measures, as those indicated in the constitution of 1833. The constitution of 1925 reserved diverse powers to the presidentsin according to exceptional situations (Palma 2004: 40) and the constitution promulgated during the dictatorship of Augusto Pinochet in 1980 and its idea of a “protected democracy” continued this tradition (Palm 2004: 96).¹¹⁴

112 Some historians as Villalobos (2011: 139) see here even the origin of the Chilean institutions, in the “perfect order” of the liberal governments of the late nineteenth century.

113 At length in Campos Harriet (1956: 537ff) and Eyzaguirre (2006: 207ff).

114 Based on the case of Brazil, Marcelo Neves (1992: 61) has pointed out that the Latin-American constitutions should be considered a mere weak “symbolic power” in front of the real political

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The constitutional stability initiated in 1833 constituted however an extremely important structural element for the evolution of Chilean law. While this process further supported the differentiation of politics, the legal side of the State and the possible limitations of its power are distinguished in every case. The form of the

“Constitutional State” (Palm 2005: 218) or “the legalistic rule of law” (Bravo Lira 1996: 204) strengthened the procedural character of the law and its most relevant institutions and also produced a factual stabilization of contents regarding the valid law. This way, a set of structural supports is constituted, and it is by means of this support that a political power based on valid law is constituted to be increasingly independent from Spanish law.

During the twentieth century there was a sustained development of the Chilean judiciary and national laws. The constitution of 1925 indicated a tendency of secularization of the State that had already begun in the late nineteenth century, by means of the law of secular cemeteries of 1883, the acts of civil marriage and civil registration office of 1884, and finally the elimination of the state jurisdiction over the catholic church (the called “patronage”) and the suppression of an official religion for the State. Constitutionalists like Palma (2004: 20ff.) argue that after the reforms made to the constitution of 1833: “the constitution of 1925 is only a reform: we are not in the presence of a revolutionary phenomenon, a case of discontinuity or constitutional rupture,” because it maintains much of the nineteenth century order. One of the achievements of the constitutionalist and codification movements of the nineteenth century was, from a semantic point of view, the extension of the legalism¹¹⁵ that goes back to colonial times.

power. The reflection of Neves is, nevertheless, exaggerated in diverse points, since he seems to overestimate the functions of the constitutions. See also Neves (2004).

115 We will return to this subject later in the context of the discussion on “legal culture.”

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Along with the figure of the subjective rights and the development of the constitutions, there is a third evolutionary acquisition of vital importance for the evolution of law in Chile and it is possible to argue that it gives a definitive impulse to the differentiation of Chilean law. We refer to the reaction of the Chilean law in the late twentieth century to the human rights violations that took place during the dictatorship of Augusto Pinochet judged in the nineties by the democratic governments. This has to do with two interrelated elements: the importance that the international law acquires and the autonomization of the Chilean courts against political pressures.