problems with judicial discretion

Discretion A similar convolution involving secondary rules of ascertainment would be encountered in assessing the legal status of a rule issued by an officer under the authority of an administrative agency empowered so to delegate rule-making functions by the terms of regulations which an executive agency is authorised to make under a statute enacted by the Queen in Parliament. 10. One method of providing legal justification for their decisions is by having legal grounds for the judges interpretation of norm formulations. Consolidated Version of the Treaty on European Union [2012] OJ C326/19. Moreover, this decision must be taken even if the interpretative code does not contain legal rules that guide the use and/or establish hierarchies among the interpretative directives. WebAbuse of Discretion: A failure to take into proper consideration the facts and law relating to a particular matter; an Arbitrary or unreasonable departure from precedent and settled judicial custom. Point of Discretion/Jurisdiction Disparity Data from PPI; Case Dismissal in the 13th Judicial Circuit, Tampa, Fla. Notice that these negative spaces are conceptual in nature, thus yielding discretion as a necessary element in legal interpretation. Semantic meta-rules are meta-meta rules that help to reduce the natural language-based indeterminacy of the interpretative code. This is true in the justice system just as much as it is with any other state matter. Google Scholar. Prosecutors offered to pursue a five-year sentence if Hayes pleaded guilty and saved them from the inconvenience and necessity of a trial.. https://doi.org/10.1017/S0008197300086578, Get access to the full version of this content by using one of the access options below. The Problem of Judicial Discretion - Yale University To begin with the advantages, judicial power is usually delegated to administrative agencies/tribunals with the purpose to provide cheap, accessible, informal, speedy and specialized justice. This feature will survive in the completed model. By legally valid I mean that the decision produces legal consequences.Footnote 13 As Kress notices, [i]n adjudication, law is indeterminate to the extent that authoritative legal materials and methods permit multiple outcomes to lawsuits.Footnote 14. 40. I will call this first kind of answer the realist account of legal indeterminacy because it was advanced by some American legal realists (e.g., Llewellyn).Footnote 5 The second kind of answer identifies the causes of legal indeterminacy as the manifestation of the indeterminacy of natural language. Difference, Disparity, and Race/Ethnic Bias in Federal Sentencing Recall that in 2, interdiction of arbitrariness is one of the features of typical legal systems. (eds. On the one hand, ambiguity in law arises when a norm formulation can be interpreted in different ways. We are in the same situation as in 5.2.2.1: discretion is moved one level up. The purpose for this is twofold: 1) to define this relationship; and 2) to say something about the scope of judicial discretion. be traced back at least as far as Aristotle. In distinguishing Judge John Z. Lee of the Northern District of Illinois addresses students as part of the Law Schools Edward H. Levi Distinguished Visiting WebBut judicial discretion can lead to inconsistent sentences with courts sometimes imposing completely different penalties when faced with similar sets of circumstances. In the next section, I will present an overview of this relationship in the three accounts of legal indeterminacy that I have laid down. It is possible to imagine an interpretative code that does contain meta-meta rules of interpretation. These two sample jurisdictions illustrate how appellate judges sometimes disregard or manipulate the I will use both the expressions, legal interpretation and interpretation interchangeably. The second kind of interpretative code is one that is not regulated by meta-rules. First, if a given society deems discretion to be problematic, the fact that it is a necessary element of adjudication then prevents the solving of this problem through more legal rules. As Hart notes, [a]ll rules involve recognizing or classifying particular cases as instances of general terms, and in the case of everything which we are prepared to call a rule it is possible to distinguish central clear cases, where it certainly applies and others where there are reasons for both asserting and denying that it applies. WebTHE PROBLEM OF DISPARITY IS DISCUSSED IN DETAIL. Judicial Discretion In re Burwell , 350 U.S. 521 (1956) . forward for criminal justice: Reimagining pretrial I will argue, infra, pp. You'll get a detailed solution from a subject matter expert that helps you learn core concepts. Judicial Discretion: There's Good News, and Some Pretty Bad News Legal problems often require judges to contextualize and balance separate interests in reaching their decisions. Abuse of Discretion Thus, if judges have discretion, they are legally obligated to exercise it. 25. Racial and Ethnic Disparities in the Criminal Justice System When judges interpret in abstracto, they need to choose among the different norms that can be ascribed to the norm formulation, thus putting an end to the ambiguity affecting the uninterpreted norm formulation. 2. The systemic indeterminacy thesis stresses the relationship between the number of interpretative directives and the number of interpretative results. If you publish a review of this Conversely, if judges do not interpret the norm formulation based on one of the interpretative directives then that interpretation lacks legal grounds. We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Judicial Discretion in Sentencing - The National Judicial 2. In addition, the combination of these different accounts of indeterminacy show that this phenomenon is present in all litigated cases. Webc. Thus, the interpreter can ascribe as many norms as there are interpretative directives to a norm formulation. Although interpretative codes are thought to help reduce ambiguity and vagueness, they would explain the presence of a plurality of norms, thus contributing to the indeterminacy of law. This rule prescribes the obligation to decide all cases. Due to the indeterminacy of natural languages, cases of ambiguity and vagueness will eventually affect those legal meta-rules. Discretion "coreDisableEcommerceForElementPurchase": false, (New York: McGraw-Hill, 1964)Google Scholar, Chap. The principle of completeness can be subjected to two readings. The most fundamental question on this topic is do judges have discretion when interpreting the law? There are three kinds of answers to this query. cheap labor. In 5, I provided a three-part reason that supports premise c). "coreDisableEcommerceForArticlePurchase": false, Both the content of the choice and its constraints will vary depending on the account that is analyzed. A legal system without a non-liquet rule would be ineffective in its task of protecting rights whenever borderline cases or legal gaps arise and the judges decide to remain silent on the matter by not providing a legal solution. | However, it seems most unlikely that a case worth appealing will have this character. One of the defining features, if not the defining feature of the courts, is the power to decide disputes. 1 of Hughes, G. This is not to say that there would be no reasons at all to justify the interpretative decision; however, it does mean that these reasons will not be legal in origin. Judicial review In the next subsection, I will provide a general overview of the account that I advance in order to localize it within the scholarly debate. ISBN: 9781641055963. There are two conceptually possible scenarios in which interpretative negative spaces can be found and these scenarios are mutually exclusive. This is not the case for the realist account, the systemic indeterminacy account, and Guastinis account of the interpretation in abstracto. This multiplicity of ascribable norms allows for judges to have discretion when interpreting the law. 9. Sentencing Laws and How They Contribute to Mass Incarceration Second, it represents the absence of a positive space. Press, 1961Google Scholar), particularly Chaps. From the multiplicity of interpretative directives, it follows that it is impossible to determine ex ante which norm will be chosen by the interpreter. 11. JUDICIAL DISCRETION AND JAIL OVERCROWDING What is important is that all 26 ways (plus a dozen others which happened not to be in use that day) are correct.Footnote 15. The vital point of Hart's system is that the statement, you are breaking the law by doing X is a descriptive, not a normative statement. Although legal systems do not usually expressly contain these kinds of rules, it is possible to imagine a legal system that does. ), Law, Reason and Justice (New York: N.Y.U. For example, article 4 of the French Code civil prescribes that [a] judge who refuses to give judgment on the pretext of legislation being silent, obscure or insufficient, may be prosecuted for being guilty of a denial of justice.Footnote 38 Another example of a non-liquet rule can be found in article 76, paragraph 2 of the Chilean Constitution that prescribes that [a]fter intervention is requested in legal form and for matters of their competence, [the courts] cannot excuse themselves from exercising their authority, not even in the absence of a law to resolve the dispute or issue submitted to their decision.Footnote 39. [v]agueness should be distinguished from open texture. For example, a judge may have discretion over the Such a legal system would find problems, for instance, whenever a norm formulation that contains vague formulas must be applied or whenever the meaning of a word has changed in a given society, and so on. Last year, PwC released a 19-year study on how often courts For a rigorous mathematical treatment, see Henderson, , James, M. and Quandt, , Richard, E., MicroeconomicTheory: A Mathematical Approach, 1st ed. E.g. These interpretative arguments [as he calls them] are legal, not moral or political, in the sense that their common starting-point is the law itself. That does not appear to be the law in England or Canada. WebA successful white businessman is sentenced to serve one year of probation for selling drugs, while a 22-year-old unemployed African-American male who never graduated high school is given five years in a prison for the same crime. As Frank points out, [t]hose who today complain of any judicial legislation in statutory interpretation are complaining of the intrusion of the judges personalities. On the significance of discretion in Dworkin's first (weak) sense for the law as a system of entitlements, see supra, pt. In "The Path of the Law," Holmes asserts that a judge deciding cases must, of necessity, act as a legislator 2012). 37. Typical rational legal systems with interpretative codes, a plurality of interpretative directives, and non-liquet rules seem to accommodate our intuitions about how the law and courts work in a typical society. In contrast, it is possible that several interpretative directives lead to the same result and still have a rational legal system.Footnote 44 Notice that the use of only one interpretative directive is a sufficient condition for a norm to be legally valid. If the wording of the law is unclear the interpreter ought to interpret the law according to the intention of the legislator. Webof judicial decisions. Webjudicial discretion, a conceptual analysis of the different senses of this term in legal theory becomes crucial. This is the core of premise c). 14 (1967), reprinted as Chap. (i) of s. IV. Sebastin Reyes Molina, Interpretacin jurdica y Legal Craft in Pierluigi Chiassoni, Paolo Comanducci & GB Ratti, eds, Larte della distinzione: Scritti per Riccardo Guastini, vol 2 (Marcial Pons, 2019) at 280. WebAbstract. It can lead to an abuse of power by judges. Nothing can eliminate this duality of a core of certainty and penumbra of doubt when we are engaged in bringing particular situations under general rules. Suppose that we have chosen the intention of the legislator rule for our code. Home Probation and Parole Officers and Discretionary Render date: 2023-08-20T03:45:43.926Z Occasionally, problems in gathering the data forced us to modify the original start date. I call the third part the obligation to decide. For an example of adding rules to the system in order to deal with issues of indeterminacy, see Sebastin Reyes Molina, On Legal Interpretation and Second-order Proof Rules (2017) Analisi e Diritto at 179. Open texture, then is something like possibility of vagueness. The multiplication of legal rules will inevitably lead to an infinite regress and just move the problem of indeterminacy and discretion to a higher level. Severity Appeals. These cases will each have some features in common with the standard case; they will lack others or be accompanied by features not present in the standard case.Footnote 27. There are two prevailing accounts of legal indeterminacy within legal philosophy. ), MicroeconomicTheory: A Mathematical Approach. According to Hart, [t]here must be a core of settled meaning, but there will be, as well, a penumbra of debatable cases in which words are neither obviously applicable nor obviously ruled out. View all Google Scholar citations In this section, I will present an overview of these two accounts with the purpose of situating my claim within the scholarly debate on legal indeterminacy. Exercising discretion entails having discretion but not the other way around. In that case, the decision of the court may be ultra vires, and may sometimes be characterized as judicial activism. Much of the federal over-punishment problem stems from the SRA. 27 Ibid., p. 879; emphasis added. WebAbstract. In other words, judges necessarily exercise discretion. WebThe problem of judicial creation of norms by means of discretion turns on the question of whether judges are entitled to determine or create the general normative premise rather I also want to thank Heather MacDonald for the language revision. In 6, I finish with the conclusions. correction. 78): The distinction seems to me either to rely unduly upon legal classification, or else to encourage what, I am sure, would be very noxiousa sentimental speculation as to the motives and degree of moral guilt of a person who has justly been convicted and sent to prison. To the same effect is Re Giles, Giles v. Giles [1971] 3 All E.R. Feature Flags: { Judicial with judicial discretion at least for now. The use of police discretion can put the public at risk. Judicial In 3, I provide an overview of both the treatment of legal indeterminacy by the scholarship and my account of legal indeterminacy. This obligation is applicable even when there are no legal rules that govern the case at hand. This reason consists of three parts. The Use of Discretion My Account These two scenarios will be explored in 5.2.1 and 5.2.2. 66 When a statute or precedent brings a whole new field of activity under legal regulation where there was none before, we may not be able to picture that action as a choice between two points. Arguably, the key issue about the interpretation of legal meta-rules has to do with the decision of whether some interpretative directive is suitable for the interpretation of norm formulations in a given case. 151 (1971). For example, a semantic meta-rule can be formulated as follows: When applying the plain meaning of the text rule, the judge ought to interpret the formula plain meaning of the text as the lexicographical meaning of the words of the law. | The first scenario refers to an interpretative code that lacks legal meta-rules for its use. Symposium: Philosophy of LawJudicial Discretion [pp. Although these reasons are independent of each other, they are all related to the role that legal systems play within a given community. I do not claim that there is an intrinsic connection between American legal realism and legal indeterminacy. This can include decisions about what evidence to admit, what legal arguments to consider, and what punishment to impose. Therefore, the non-redundancy clause supports the claim that the multiplicity of interpretative tools contributes to the multiplicity of norms, thus, making law indeterminate. For a historical approach of the non-liquet rule, see Alfredo Mordechai Rabello, Non Liquet: From Modern Law to Roman Law (1974) 9 Israel L Rev 63. By result, I am referring to the decision of a case. Thus, judicial discretion is the result of the combination of an interpretative code with a multiplicity of interpretative directives, the non-redundancy clause, the existence of interpretative spaces, and the non-liquet rule. Press, 1969Google Scholar), henceforth cited as Model with page references to the original (and to Hughes in square brackets); Philosophy and the Critique of Law, in Grimm, R. H. & Mackay, A. F. The non-redundancy clause states that rational legal systems can have neither redundant norm formulations nor norms. The rule of non-liquet would be the legal systems answer to inaction in the face of legal gaps or borderline cases. By assessing aggravating and mitigating factors in addition to the legislation breached, judicial discretion ensures punishment is in proportion to the crime. I call these versions the double-indeterminacy thesis and the open texture thesis respectively. Although ambiguity and vagueness play a role in legal interpretation, the picture of legal indeterminacy is complete when it is understood in combination with the notion of a rational legal system. Section IV will also examine judicial opinions and empirical data gathered from Texas and California. 3. Does Fair and Impartial Judiciary Mean The decision about how to use the interpretative code amounts to a choice. For an analysis of the three Kelsenian notions of validity, see Bulygin, supra note 12 at 81-83. Jerome Frank, Words and Music: Some Remarks on Statutory Interpretation (1947) 47:8 Colum L Rev at 1264. This second feature (i.e., a multiplicity of interpretative directives) will be addressed in the next subsection. Author interviews and review copies of this book are available by emailing Francine Bennett at Francine.Bennett@americanbar.org . Judicial discretion is the power of the judiciary to make some legal decisions according to their discretion. GOP state legislatures target progressive prosecutors : NPR Following Spaak, one factor that is relevant to the interpretation of statutes: the literal meaning of the statutory text, consistency and coherence in the legal system, legislative intent, and statutory purpose, respectively. Ronald Dworkin, The Model of Rules (1967) 35 U Chicago L Rev 14 and Ronald Dworkin, A Matter of Principle (Harvard University Press, 1985) at 119-77. In other words, interpretative negative space will arise when interpreting syntactic meta-rules, and thus judges willsince they must decidenecessarily have discretion in interpreting the law. In moderation, judicious discretion promotes justice; promiscuous, idiosyncratic discretion violates it. As the reader may notice, I distinguish the notion of discretion from whim. New Yorks Bail Laws, Reconsidered: 5 Things to Know In all these accounts, discretion can be formulated as a choice made by the interpreter. 6 Sartorius, Rolf, Social Policy and Judicial Legislation, 8 Am.Phil.Q. What are here termed the first and second senses of discretion were in Model referred to as the first and second weak senses, and what is here termed the third sense was in Model called the strong sense. Rahmadan, Davit Government Chapter 14 quiz Extract. 27. It is possible to think about a legal system that contains an interpretative code with both syntactic and semantic meta-rules of legal origin. Unfortunately, the Supreme Court authorized this practice in a 1978 case called Bordenkircher v. Hayes. Therefore, in cases in which the canons of interpretation are in themselves vague, they will fail to reduce indeterminacy of law. Eugenio Bulygin, Essays in Legal Philosophy (Oxford University Press, 2015) at 308. However, courts not only have the power to decide but also the legal obligation to do so. Problems with Wednesbury Unreasonableness in Contract Law Alf Ross, On Law and Justice (The Lawbook Exchange, 1959) at 131-32; Carlos Alchourrn & Eugenio Bulygin, Normative Systems (Springer-Verlag, 1971) at 60-62; Carlos Nino, Introduccin al anlisis del derecho (Ariel Derecho, 2013) at 272-92. "corePageComponentGetUserInfoFromSharedSession": true, The realist account, the systematic account, and the natural language account help to identify at which stage within the process of adjudication judges will have discretion. 17 Ibid., p. 131; emphasis added. In a parliamentary democracy he will find himself climbing different hierarchies or branches of hierarchies leading sometimes to Parliament, sometimes to the highest appellate court of the land.

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