Key Concepts in Public Law Evolution

Understanding the Evolution of Public Law

The Principle of Legality (Top Juridica)

• Originates from the Constitution of 1833 (Art. 160).
• It is the basis of the Chilean government.
• Currently enshrined in Article 7 of the Constitution (CPR).

This principle establishes requirements for acts of public bodies. Public bodies must behave differently than private entities; their actions are more limited. Public bodies can only act if the law permits it.

The principle "under the Constitution or laws" means public bodies can only do what the Constitution or laws permit.

Differences between Public and Private Law:

• Private Law: You can do everything that is not prohibited.
• Public Law: You can do only what is permitted.

State Responsibility and Judicial Review

Individuals can appeal to the State when their human rights have been violated, particularly due to negligent acts.

Two phases of appeal:

• Administrative Phase: Appealing to the same body that caused the damage or issued the act (e.g., expropriation).
• Judicial Phase: Appealing to the courts.

It is a right of individuals to challenge any administrative action, requesting its revision.

Challenges to Administrative Actions

Example: If a municipality issues a measure and you challenge it directly with the municipality (City Hall), they are unlikely to reconsider their own action. The possibility of withdrawal is often voided.

You can challenge for various reasons.

Principle of Seriousness of Proceedings: It is assumed that the government generally acts seriously because they deal with serious issues (e.g., a prosecutor's investigation).

Evolution of Constitutional Supremacy

The Constitution aims for the common good of the state (Art. 1, Ins. 4).

Historically, people were seen as being in service to the State, leading to a perceived loss of constitutional supremacy's value. Now, the focus is the opposite: the State serves the people, which is a guarantee of the current Constitution (CPR).

If the State's purpose is the common good, the State itself serves as the means to achieve this.

International Law vs. Internal Law

Regarding international treaties and internal law, Kelsen's hierarchy of norms applies. When conflicts arise, principles like lex posterior or lex specialis may be used. However, international treaties may not always apply directly to internal affairs depending on the legal system's approach.