The Diffuse And The Concentrated Model Of Judicial Review

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The choice between the diffuse and the concentrated model of judicial review (and, within the concentrated family of systems, between the supreme court version and the constitutional court version) is often understood to reflect a divide among two competing theories of constitutional law. One theory perceives constitutional law as, first and foremost, a field of law, to which regular adjudicatory method is applicable, along with its assumptions of professionalism, objectivism, and interpretivism. This theory aligns with the diffuse model of judicial review, since it leaves constitutional jurisdiction in the hands of the professional judiciary. A contrasting theory posits constitutional law as a unique field of normative ordering,
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This is not surprising: in the absence of a written constitution or even an agreed-upon process for drafting and enacting such a constitution, Israeli constitutional law has been the result of the ongoing interaction between the clearly juridical and the clearly political. It is in the metaphorical zone that lies between these two spheres of social action that Israel‟s constitutional law has emerged; and the „supreme trial court‟ embodied in the High Court of Justice‟s constitutional jurisdiction is one of the institutional expressions of this interim state of affairs. The lack of a foundational constitutional theory has led, therefore, to a lack of institutional choice. What we have instead is a complex combination of diffuse and concentrated elements. But this is not necessarily a bad thing. The jurisdictional ambiguity of Israel‟s system of judicial review has maintained and reflected (without deliberate intention, but nonetheless with effective force) a blurring of the legal/political distinction in constitutional adjudication. Thus, Israel has a high court that is essentially a court of appeals, which also upholds a set of unique procedures for reviewing the variety of political transgressions. It shifts between both functions fluidly, often with little consequence to either substance or procedure. It does both „legal law‟ (appellate review) and „political law‟…show more content…
Keeping judicial review within the courts, as the diffuse model urges, will not turn the interpretation and application of the constitution into an objective endeavor, free from moral, ideological, or theoretical commitments or from class, culture, and other group influences. Similarly, placing the constitution away from the regular judiciary, as the concentrated model urges, will not relieve „legal‟ adjudication from the political stakes that are involved in any exercise of judicial power, constitutional or otherwise. Classifying constitutional law as more or less „political,‟ therefore, offers no real guidance as to the optimal jurisdictional arrangement for the exercise of judicial review; Israel has effectively defied this

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