Judicial discretion

related topics
{law, state, case}
{woman, child, man}
{government, party, election}

Judicial discretion is the power of the judiciary to make some legal decisions according to their discretion. Under the doctrine of the separation of powers, the ability of judges to exercise discretion is an aspect of judicial independence. Where appropriate, judicial discretion allows a judge to decide a legal case or matter within a range of possible decisions.

However, where the exercise of discretion goes beyond constraints set down by legislation, by binding precedent, or by a constitution, the court may be abusing its discretion and undermining the rule of law. In that case, the decision of the court may be ultra vires, and may sometimes be characterized as judicial activism.

Chief Justice John Marshall wrote the following on this subject:

Judicial power, as contradistinguished from the power of the laws, has no existence. Courts are the mere instruments of the law, and can will nothing. When they are said to exercise a discretion, it is a mere legal discretion, a discretion to be exercised in discerning the course prescribed by law; and, when that is discerned, it is the duty of the court to follow it. Judicial power is never exercised for the purpose of giving effect to the will of the judge, always for the purpose of giving effect to the will of the legislature; or, in other words, to the will of the law.[1]

Concerns with regard to recidivism and other law and order issues have led to the introduction of mandatory sentencing laws which significantly limit judicial discretion in sentencing, particularly in the United States.

See also



Full article ▸

related documents
Chisholm v. Georgia
Jury instructions
Pacta sunt servanda
Fourth Geneva Convention
Abstract (law)
Permanent Court of Arbitration
Fighting words
United States Solicitor General
International human rights instruments
Clean Air Act (1970)
Convention on the Prevention and Punishment of the Crime of Genocide
Operation TIPS
Masonic Lodge
English Heritage
Bill of rights
Cohens v. Virginia
Bomb threat
Nulla poena sine lege
Confidence trick
Default (law)
Non-disclosure agreement
Wikipedia:Legal disclaimer