Legitimation Narratives, Resistance, and Legal Cultures in Authoritarian and Post-authoritarian Chile: Lawyers and Judges in the (Post)-Transition

Abstract

This chapter draws on literature about courts, constitutionalism, and legal mobilisation in and around authoritarian regimes. It adopts both the notion of the continuing importance of constitutional ‘moments’, and the concept of legal mobilisation as one form of contestation and resistance, to explain and explore some of the particular meanings that law, lawyers, and legal activism acquired before, during and beyond the Chilean transition of 1990. Interpreting legal mobilisation against the backdrop of prevailing legal-cultural traditions, the chapter contends both that the authoritarian regime´s constitution-making moment of 1980 should be viewed as—to date—the foundational critical juncture of Chile’s past four decades; and that subsequent ‘rights talk’ in Chile was hamstrung for many years by its obeisance to conceptions of legality that hark back to this phase of the dictatorship. The constitution-making process triggered by a late 2020 plebiscite however offered at least the promise of transformation of these self-limiting habits, won as it was in the street rather than the courtroom or even the legislature.