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Hastings International and Comparative Law Review

Authors

Jonathan Miller

Abstract

A basic trend toward review exercised by a judicial or quasijudicial organ is unquestioned in the modem world today. The most obvious reason for the rise of judicial review is that pluralist societies require a respected institution to resolve disputes over interpretation and application of the rules binding them together. Second, absence of a judicial arbiter risks the transformation of reasonable constitutional disagreements into festering political disputes which threaten the legitimacy of those in power. Third, pluralist societies require organs able to legitimate or disapprove fundamental change when faced with groups prejudiced by the changes.

Despite extensive scholarship on judicial review, its sociological foundation has been left unaddressed. This Article will develop a general sociological model of judicial review using Max Weber's Sociology of Law as a starting point. Once the model is established, it will be applied to Argentina in order to show how judicial review may lose its effectiveness over the long term. Argentina presents one of the longest traditions of judicial review in the world, dating back to the 1860s. The model focuses on the sources of authority that a judiciary may invoke in constitutional interpretation and the inevitable pressures upon a judiciary to respond to social needs when engaged in constitutional interpretation, as well as the difficulties a judiciary may face in maintaining social authority when it invokes what is essentially a "charismatic" authority free from textual restraints. The Article will conclude that a move toward "responsive" interpretation that depends on the interpreter enjoying at least limited charismatic authority is probably inevitable over time, but when the shift towards responsive interpretation occurs, unless society recognizes judges as endowed with an element of charismatic authority, the courts will run a risk of losing their independence.

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