🚀 go-pugleaf

I am an argentinian jurist and want to exchange ideas
and experiences about the rol of judges in law. There is
a strong tendence today in Argentina to leave more and
more cuestions to "the judge's own criteria".
An astonishing example of the tendence
is a projected new argentinian civil code
that allows the judge to condemn any person to pay damages
based ONLY on the reason that he (the judge)
founds it equitative. In that case, there is no need to examine
culpability (even causality is explicity removed as a requisite)
or any other relation with the damages.
Shure, the move to give almost free powers to the judge
is a worldwide tendence. I think that it is wrong and dangerous, and have
written a few notes in law reviews on the subject.
Also, I have written a book on a special field,
(contractual clauses on interest rates),
in wich judicial innovations have lead to absurd results.
For instance, in 1991 our Supreme Court lowered interest
rates applied on trials, on the basis that it will help to reduce
inflation rates (the true relation between interest and inflation rates
seems to be the opposite, as all experience shows)
On the same basis, some lower courts even
change retroactively existing contracts.
That is, courts deciding a case, and at the same time
trying to modify the market. That generated trouble for some years
(the court has now reverted to the law) because it was not
a true general rule: it was applied only to the contracts and cases
that reached the courts.
At the start of the XX century, judges were criticised
saying that they follow the law, and ignore reality.
Now, at the start of the XXI, judges try to follow reality
(or what they think is reality), in many cases, against the law.
The case of the interest rates ("lower interest rates will
reduce inflation") is very instructive,
showing that freeing the judges from the chains of the law (?)
gives even no guaranty that they will understand better the reality.
It is just a hope, a bet that has been made many times in history.
I am particulary interested in the historical roots of the tendence
to "free" judges from the law,
wich, I think, can be found in the '30 years of the XX century.
Then, there were many books against the law
(described as "old, abstract, individualistic") in Germany and Italy,
but also in USA and many other countries.
Now in Argentina many jurists write again that judges should follow
"the healthy popular sense of justice". So it is a subject of
both historical and present interest.
I will be glad to know your ideas on the subject and share
legal and bibliographical references.
I read english, german, french, italian and spanish,
but write easier in english or spanish.

  Ariel Emilio Barbero

  calle 16 nro. 677 depto 4
  1900 La Plata
  Provincia de Buenos Aires
  Argentina