Understanding Judicial Discretion
Document Type
Article
Publication Date
1982
Source
Law and Philosophy
Volume
1
Issue
1
First Page
21
Last Page
55
URL with Digital Object Identifier
http://dx.doi.org/10.1007/BF00143145
Abstract
The main aim of this paper is to clarify the dispute over judicial discretion by distinguishing the different senses in which claims about judicial discretion can be understood and by examining the arguments for these various interpretations. Three different levels of dispute need to be recognized. The first concerns whether judges actually do exercise discretion, the second involves whether judges are entitled to exercise discretion, and the third is about the proper institutional role of judges. In this context, the views of Dworkin, Raz, Perry, Greenawalt, and Sartorius are examined. Finally, it is suggested that a resolution of the judicial discretion controversy requires a satisfactory theory of the justification of judicial decisions.
