The author analyzes the regulation that the Constitution makes of arbitrariness -and its interdiction-, especially in relation to the legislator. He points out that, in a first reading, his interdiction in relation to the legislator seems to be only linked to the guarantee of equality and non-discrimination in economic matters. In his opinion, this interpretation is wrong: the ban on arbitrariness is a basic principle of the Chilean Constitution, as recently affirmed by the Constitutional Court, a ban that he understands in broad terms, in such a way that it affects, in his opinion, all State bodies, including the legislator, and in relation to any right and guarantee recognized by it. Under this understanding, he maintains that its repressive control can be obtained through the requirement of inapplicability due to unconstitutionality. In effect, it states that the acts that execute an arbitrary law are of an identical nature, and since these can be controlled in different ways by the ordinary Courts, generally through the appeal for protection, the management that is followed for this purpose can be constitute the one that enables the interposition of the aforementioned requirement, and through this, finally, declare its inapplicability for producing its application in the specific case -by protecting an arbitrary act- effects contrary to the Constitution. It observes that arbitrariness in itself is a vice of unconstitutionality, which is why arbitrary law is always unconstitutional, from which it concludes that its application in a particular case always produces effects contrary to the Constitution, hence it maintains that the concrete control that inapplicability matters in relation to said legal precept, it stands, in practice, in the abstract, which is why it considers that the expression "requirement of inapplicability due to unconstitutionality", classic to refer to it, is, in this case, correct.
Román Cordero, C. (2015). The requirement of inapplicability due to unconstitutionality as a control mechanism of the arbitrariness of the legislator. Revista De Derecho Público, (72), Págs. 347–382. https://doi.org/10.5354/rdpu.v0i72.37718
