Theoretical aspects and case law regarding the legal reserve regulation and limitation of fundamental rights

Abstract

The principle of reservation of law on fundamental rights jurisprudence of the Constitutional Court inapplicability requires rethinking the position, contents and elements of this principle in the Chilean constitutional system. This paper explains the coexistence of a regulatory general reservation from other specific reservations of limitation and finally a reservation issued by International Law. It is added that the review of the legislator in the subject matter is an abstract element and not specific. Subsequently, and examined the jurisprudence of the Constitutional Court, two jurisprudential stages are detected and characterized, one founded on the exclusion of merit control and other based on the imported principle of proportionality, with predominance of specific reservations and with an emerging jurisprudential line that tends to recognize the general reservation, more limitations and not regulations.