In Researching Judicial Discretion, it is necessary but not sufficient to Research the Judge.

TIILE:

Introduction

Courts and judges play such an important role in the any legal system, and the theory of law which hopes to be relevant must carefully consider the judicial branch. In particular, it must provide a detailed account of the powers and responsibilities of judges and judicial reasoning. So, the question is how the judges exercise discretion and are there any conditions or reasons which can effect to the judicial discretion, if there are, then which of them is necessary or sufficient to be considered in a case of researching the judge?

First of all, there are different theories according to the above mentioned and different theories will, of course, lead to different conclusions. Legal positivists, such as H. L. A. Hart, claim that in hard cases judges do exercise discretion. However, while an alternative theory of law offered by Ronald Dworkin contains some aspects of positivism, Dworkin believes that judges do not have discretion.

Discretion is a kind of decisional power, and there may be a gap that judges have no power fills, or there may be a gap that no one has any power to fill. But supposing the fundamental rules of jurisdiction do give someone or other that power, what is the relationship between legal gaps and judicial discretion?

The major function of the judiciary lies in the interpretation of the statutes and the application of common law precedents. In this field the problems are substantially the same for all common law jurisdictions. As a subsequent chapter will show, they are indeed not basically different in the civil law jurisdictions.

The English, as much as the American or Canadian judge, whether he/she interprets a statute or applies a common law precedent, is faced with the perennial problems: how to balance the need for stability and certainty, embodied in principle of stare decisis, with the need for the constructive adaptation of the law to changing social needs: how to balance the certainty aimed at, if not always achieved, by strict adherence to the letter of the law, with individual justice. The problem is that the conflict can never be finally resolved. Changing climates of public opinion, fluctuations in the strength of the political and social pressures, differences of personality, and the sheer limitless variety of individual situations calling for a solution, constantly pose the problem anew. But if there are no basic differences of principle, there are considerable differences in approach and method. The task of the judge is to find how far the facts before him can be fitted into the abstract and generalizing definition the statute. In common law cases, on the other hand, the sorting out process starts with the comparison of one set of the facts with other set of facts. Even if the judge in either case is possessed by strong desire to do justice rather than to be dominated by statutory texts or precedents, he will seek to attain his objective by different ways.

It is because of the differences of legal technique rather than of principle that the interpretation of statutes and precedents requires different treatment.

Judicial Discretion and the Judge

First of all, in researching and understanding of cases from national jurisdictions and international jurisdictions (European Court of Justice and European court of Human Rights), it is necessary to be familiar with the key policies and any key aims of the case arising from the Anglo-American common law jurisdiction.

In interpreting the law, particularly in UK, it is a simply to take the report by judiciary acts, look at ...

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It is because of the differences of legal technique rather than of principle that the interpretation of statutes and precedents requires different treatment.

Judicial Discretion and the Judge

In interpreting the law, particularly in UK, it is a simply to take the report by judiciary acts, look at the text and assume what the judges rendering in their account. Analysis relating to that case can be found by reference to the words and speeches of the judges that are recording in the law reports or justice reports. And that assumption is based on the idea, the idea which is referred before in legal profession. So, firstly lawyers must separate out the legal issues from other human issues, economical issues and social issues, because the law tends to operate as those universal judicial principles which apply regardless to the subject matter then the court might be concern on the particular given session. The theory relating to the precedent is true just as much in the context of the criminal law case as it could be consequence to any contract law or public law. That is true that the general principles which can apply to any case, to examine and to try to understand what is happening and how the judiciary is making its judgment and what is actually happening in the courts itself?

Normally it is expected to find the ratio decidendi in any case, then to find the critical judgment, critical section in the case where the judge or the majority of the judges make their actual decision, also to find what is the critical issues in any given text. These critical issues is the only issues and only part of the case that reproduce in the textbook of the law. And this is a very narrow approach in understanding and reading legal text. So, the authorities section of judgment must be understood, which the ratio decidendi of the judgment is. Again, it is necessary for the judge to find the ratio decidendi of the case, in order to make no further attempt to state any rules by which it can be determined. It should be distinguished between the concrete decision and the abstract ratio decidendi. However, it is clear, that the first rule for discovering the ratio decidendi of a case is that it must not be sought in the reasons on which the judge has based his decision.

To sum up, judicial decision contains in itself a principle which thus forms its authoritative element is often formed the ratio decidenti, which alone has the force of the law as regards the world at large. In common law system in order that an opinion may have the weight of a precedent there is a condition, that is must be an opinion the formation of which is necessary for the decision of the particular case, in other words, it must be obiter dictum.

In order to understand the legal text it is important to understand the context the surrounding information and surrounding economical, social or political issues and to separate out the legal issues involved in the case. Perhaps, as well as to learn context there is a need also to consider the sub contexts. Equally, sometimes it is necessary to look at the obiter dictum which is interesting and which is going to be useful for the case. Just looking to the ratio decidendi and the obiter dictum itself it is probably not going to be enough , it is important to understand why the judge feels it is necessary to make some additional comments in a particular case and also why do they want to involve them in a case? These all are key critical questions.

When the judge makes a decision it is sufficient to find out how the case and the facts of the case can be understood by the judge. According to the recent analysis of cases there are different principles and approaches of judicial thinking. For example, the way that judiciary thinks collectively. Collective position of judiciaries is the role-general position. However, for the researching the judge it is necessary to take into the consideration the reasoning implied. One of the ways in judges’ interpretation is the inductive logic. In addition, it is generally believed that the judges are well skilled in the art of reasoning and also they are involved in a type of inductive reasoning called reasoning by analogy. The other method is deductive logic, which is not used by the judges very often.

On the one hand it must be considered the other arguments when researching the judge. In hard cases it is also necessary to consider whether the judges are rationalized, or whether the judgment has been decided with the current political situation; political authorities in the case should be considered as well. Furthermore, not only do judges seem to make decisions based on their personal morals and political persuasions at times, but also it is expected that they will do so. Also, according to the above mentioned, one of the most significant factors is be considered is the appointment of a judge. Mostly, judges’ appointment is a political decision; it is based not only on how good of a judge is, but also on his personal political views. Precisely, it is because the personal opinions of the judge are expected to come into play during decision-making. It is difficult to believe, that there is, in fact, a real obligation upon judges to put aside their personal morals. The judicial appointment system can show the policy of the judge’s thinking, the principals of judiciary, and also political routes can be seen by the appointment policy of the judge.

Also press opinion may reflect to the judge’s executive policy as well. In some cases it is also necessary to look at the judicial writing or ruling, for example, is it a specialized legal language or not? So, what kind of language do they use, specialized or colored?

In order to research the judicial discretion, it is sufficient for the judge to determine the principle of a case, the first and the most essential step is, therefore, to determine what are the material facts on which the judge has based his/her conclusion (Williams v. Carwardine case).So, it is by the judge’s choice of the material facts that he/she creates law.

Religious approaches of judges are sufficient in judicial discretion, because using the law-making power or in some adoptions of the laws there is a religion approach to the legal question (legalization of abortion, legalization of prostitution and etc.)

Sometimes, educational background of the judge has a place of consideration in this area as well. Finally, for some cases the cultural or ethnical origins can have a sufficient role in judicial discretion. To sum up, these are the tasks which must be considered when researching the judge in judicial discretion.

Conclusion

To conclude, the necessity and the sufficiency of the researching judge in judicial discretion it must be firstly to determine whether it is easy case or hard case (BCCI case). As Dworkin believes that the job of a judge is a very difficult one and he does, however, think that there is a correct decision, a decision which accurately weighs principles, protects natural rights, and is consistent with the society's morals. So, as the reality shows the judges are not free to act upon personal preference; they must act on public standards and also sometimes on political persuasion. Instead, judges must draw on the moral norms of society.

Finally, according to the above mentioned most of the time the judges make decisions based on some reasons surrounding their personal and career life. It is true that the impartiality of the judges is guarantied by the law, but it is very soon to talk about the guaranties because first of all the judges must be independent not only in de jure but also in de facto. Then there will be judges who will keep all general principles representing society's moral values, and that there will be no place in the judicial system for the personal morals of judges.

Bibliography

Books, Journals, and Articles

R. Wacks, “Understanding of Jurisprudence”, OUP, 2005
Dworkin, Ronald. “Judicial Discretion”'. The Journal of Philosophy. Vol. 60, No. 21, American Philosophical Association, Eastern Division, Sixtieth Annual Meeting, 1963
Wade Mansell, “A Critical Introduction to Law”, Cavendish, 1999
Sidney Hook, “Law and Philosophy”, New York University Press, 1964
I Ward, “An Introduction to Critical Legal Theory”, Cavendish press, 1998
R. Unger, “Law in Modern Society”, New York Free Press, 1976
G.W. Paton and David P. Derham, “A textbook of Jurisprudence”, Clarendon Press, Oxford, 1972
S. Hanson, “Legal Method” London, 1999
Arthur L. Goodhart, “Essays in Jurisprudence and the Common Law”, Cambridge Inversity Press, London, 1972
Leslie Green, “Three Themes from Raz”, Oxford Journal of Legal Studies, September 2005,Oxford University Press, OJLS 2005.25(503)
Hassan B. Jallow, Chief Prosecutor, International Criminal Tribunal for Rwanda (ICTR), “Prosecutorial Discretion And International Criminal Justice”, ICJ 3.1(145), March 2005
Law Society Gazette, “News: News In Brief” 22 July 2004, LSG 101.29(4)
, “The framework of judicial sentencing : a study in legal decision making”, Cambridge University Press, 1997
Keith Hawkins, “The uses of discretion” Oxford, Clarendon, 1992

Leslie Green, “Three Themes from Raz”, Oxford Journal of Legal Studies, September 2005,Oxford University Press, OJLS 2005.25(503)

G.W. Paton and David P. Derham, “A textbook of Jurisprudence”, Clarendon Press, Oxford, 1972

‘Ratio Decidendi’ is the reason for deciding. It is an extracted distillate and incorporates a combination of facts found and law applied by the judge in that previous case which, in focus, have gone to reaching the decision ( Kleinwort Benson v. Lincoln CC [1998] 4 All ER 513)

‘Obiter Dictum’ is a statement by the way, something incidental. English law follows precedent. The part of the case which is binding and must be followed the ratio decidendi. If, in passing, a judge makes some observation as to the law, which is not in point, which does not relate specifically to the reasons leading directly to the decision in the case before him so as not be part of the ratio decidendi , that statement will be obiter dictum.

Arthur L. Goodhart, “Essays in Jurisprudence and the Common Law”, Cambridge Inversity Press, London, 1972

Hanson, S., “Legal method” , London, 1999

Reasoning is from the general to the particular (induction)

Reasoning is from the particular to general (deductive)

URL:

Dworkin, Ronald. “Judicial Discretion”'. The Journal of Philosophy. Vol. 60, No. 21, American Philosophical Association, Eastern Division, Sixtieth Annual Meeting. (Oct. 10, 1963)