Judicial discretion

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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

In 1824, US 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

See also

• Aharon Barak
• Close case

References

Further reading

• Gelsthorpe, Loraine and Padfield, Nicola. Exercising Discretion: Decision-making in the criminal justice system and beyond (Willan Publishing 2003).