Some considerations on the Judicial Review in Argentina

Abstract

Constitutional review is a critical mechanism for safeguarding constitutional supremacy in modern legal systems. Argentina adopted a system of judicial review based on the original U.S. model. This system, established through the Supreme Court’s decisions, has defined the judiciary’s role in the nation’s constitutional democracy. This paper, aims to identify and describe the core elements and characteristics of Argentina’s system of constitutional review. It analyzes how this system has been shaped by key jurisprudential precedents from the Supreme Court of Justice of the Nation (CSJN), exploring the unique tension between its origins in a Common Law model and its implementation in a Civil Law tradition. The research methodology is a qualitative analysis of historical legal documents and key judicial rulings. The study focuses on landmark precedents from the CSJN to trace the historical development and define the essential characteristics of constitutional review in Argentina. The paper demonstrates that Argentina’s system of constitutional control is a diffuse model, where all judges can exercise review. A key finding is the absence of a strict stare decisis rule, which creates a paradox where Supreme Court decisions are not formally binding but are treated as a “moral duty” for lower courts to follow for reasons of procedural economy and legal certainty. The analysis reveals that the system’s development was primarily “praetorian,” driven by the CSJN’s rulings rather than explicit legislative or constitutional mandates. The Argentine system of judicial review remains one of the few worldwide that closely follows the original U.S. model, yet it has unique features that reflect its Civil Law context. While not formally binding, the practical application of the CSJN’s precedents creates a de facto obligation for lower courts. This tension is central to understanding the system’s functionality and its implications for the protection of constitutional rights.