The Civil Law Tradition, the Pinochet Constitution and Judge Eugenio Valenzuela

Abstract

The depersonalization of the courts that the civil law tradition encourages makes it less likely that judges in those types of jurisdictions will become towering judges or, at least, it will make their influential jurisprudence anonymous or less visible. By exploring the experience of Eugenio Valenzuela, a Chilean judge that served at the Constitutional Court in the 80s, this Chapter shows that, despite the limitations of the civil law tradition, sometimes it is nonetheless possible to identify a towering judge in a civil law country. The author studies how judge Valenzuela led a group of judges within the Chilean Constitutional Court and succeeded in challenging critical pieces of legislation enacted by the military Junta during the Pinochet dictatorship. By showing how the Valenzuela jurisprudence helped to advance the transition to democracy against the interests of the authoritarian regime, the author claims that founding moments in fragile institutional settings of civil law countries may provide an opportunity for a political towering judge to emerge.

Keywords: Chile, Constitutional Theory, Judges, Judicial Behavior, Constitutional Interpretation, Civil Law Jurisdictions