The Argument on Judicial Discretion

In light of these disputes among natural lawyers, positivists, and realists, I believe the use of judicial discretion and its influence plays a necessary and important role in the judicial. This is because it brings us one step closer to truly achieving a sense of fair and equal justice. I think that judicial discretion is certainly valid and is very beneficial to the legal system because all cases must be tried differently because no two cases can be identical. This leads me to side with the legal realists and critical legal theorists in agreeing that judicial discretion is the norm rather than exception to legal rules. No law is set in stone and cannot be applied the same to all cases; what pertains to one particular case will not necessarily relate to one on a different occasion. Social values definitely play a key role in influencing judicial discretion and this is most apparent when it comes to sentencing. Two judges might choose very different actual sentences from a sentencing range for the same exact crime, because other factors might come into play, such as the circumstances under which the crime was committed and the offender’s criminal record. However, some may argue that when exercising judicial discretion, judges drift too far from the rules established by statutes and that they show bias, exercising discretion beyond their authority. There will always be some degree of bias from judges when making decisions in court because these are humans not machines judging us, after all.