Interpreting or creating the law? A critical app roach to the judicial understanding of section 171 of the Labor Code: ¿Interpretación o creación judicial del derecho?

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Abstract

The purpose of this paper is to analyze a Labor case law which consists in the extension of a rule of section 168 final paragraph of the Labor Code to a different hypothetical, that of section 171. It states that judicial enforcement of section 168's rule to those situations covered by section 171 ensues not as the product of judicial interpretation but as an outcome of judicial activism. Under the claim that they are applying a central principle of Labor Law, judges alter legislator's intent by attaching a different juridical value to factual premises underlying the legal text. By this fashion, judges become legislators themselves.

Translated title of the contributionInterpreting or creating the law? A critical app roach to the judicial understanding of section 171 of the Labor Code
Original languageSpanish
Pages (from-to)433-458
Number of pages26
JournalIus et Praxis
Volume25
Issue number2
DOIs
StatePublished - 2019

Bibliographical note

Publisher Copyright:
© 2019 Universidad de Talca.

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