What is judicial discretion and what is its purpose?
Judicial discretion refers to a judge’s power to make a decision based on his or her individualized evaluation, guided by the principles of law. Judicial discretion gives courts immense power which is exercised when legislature allows for it.
Do judges have discretion Dworkin?
This doctrine asserts that in hard cases – cases in which it is unclear what the law requires – there is no legally required dispensation, so that judges are entitled to use discretion in making their decision.
What is strong discretion?
Dworkin defines a stronger concept of discretion as follows: someone has discretion in making a decision if he is not bound by standards set by an authority (Dworkin, Rights, 80-81). This is the kind of discretion with which Dworkin is concerned.
Why do we need judicial discretion?
In a functional sense, discretion is often used by both legislators and judges to achieve fairness in procedure as well as in outcome. It enables judges, who are best placed to consider the particular facts of any given case, to identify what fairness may require in the circumstances.
When can judicial discretion be used?
“Whatever the crime, judges always must retain discretion to ensure sentences are appropriate to the facts of a case. If judges make mistakes or are not applying accepted sentencing principles then their decisions can be appealed.
What is discretionary decision making?
Discretionary decision means a decision requiring the exercise of judgment, with or without deliberation, on the part of the decision-making authority in the process of approving or disapproving a particular activity, as distinguished from situations where the decision-making authority merely has to determine whether …
What is a hard case Dworkin?
4 A slightly different approach is taken by Dworkin, who, in reference to positivistivism, defines a “hard case”, as follows: when a certain case cannot be resolved by the use of an unequivocal legal rule, set out by the appropriate body prior to the event, ‘then the judge has, accordingly to that theory, a ‘discretion …
Is Dworkin a legal positivist?
Hart’s legal positivism has been summarized by the Stanford Encyclopedia of Philosophy: Dworkin, as positivism’s most significant critic, rejects the positivist theory on every conceivable level.
What is Hart’s rule of recognition?
According to hart, rule of recognition is the foundation of a legal system and it is accepted by both private persons and authoritative criteria for identifying the primary rules of obligations.
Is Hart a legal positivist?
Hart. Hart is clearly the leading contemporary le- gal positivist in Anglo-American jurisprudence. This status is acknowledged by both his critics and defenders alike. Yet it seems many neglect to look deeply enough at his view on morality and the law.
What are two major areas of judicial discretion?
Judicial discretion falls into two classes-reviewable and non-re- viewable.
What limits judicial discretion?
Structures that limit judicial discretion include statutory limits, mandatory sentences, presumptive sentencing, and sentencing guidelines. Sentencing guidelines can be applied in a way that makes judges accountable for individual sentence length decisions.
What did H.L.A.Hart say about judicial discretion?
H.L.A. Hart’s The Concept of Law (Hart 1994) contains many passages that have become iconic for legal theory. This essay focuses on Chapter 7, sections 1 and 2, and Hart’s comments about judicial discretion in the context of Ronald Dworkin’s well-known attack on the idea of judicial discretion in his essay “The Model of Rules.”
What is Hart’s view on judicial rule making?
Hart represents such rule-making as a balance of certainty and flexibility, and he is correct to do that. The second project is to argue that Dworkin’s attack on the positivist model of common-law judicial rule-making as an exercise of “strong discretion” fails.
What is the second project of judicial discretion?
The second project is to argue that Dworkin’s attack on the positivist model of common-law judicial rule-making as an exercise of “strong discretion” fails. The idea, central to the meaning of “strong discretion” that courts are not “not bound by standards set by the authority in question” cannot be established.
What does Hart’s theory of Dworkin law mean?
For Dworkin law consists not merely of rules (as Hart would have us believe) but also of what Dworkin calls ‘non-rule standards’. ‘Dworkin believes that when a court has to decide a hard case it will draw on these (moral or political) standards -principles and policies- in order to reach a decision.