A Little Judicial Discretion

Judicial discretion plays a role in our legal system. Judges and juries have some discretion when it comes to deciding a case, but I feel this should be kept at a minimal level. If every case that came to the courts was decided just on the discretion of the jury or judge it would be hard for a legal society to exist. Not knowing how a judge would rule on certain situations would make it harder for people to follow the law and would eventually have no need for the law. This means there is definitely a need for positive law. People need to have written laws that they know they must follow or certain repercussion will be taken. Without positive law everything that comes across the judge’s desk would be up for interpretation. This could make the law not fair in the eyes of the people even if the judge is doing what they think is right. People are inherently bias towards certain things and I think this would show somewhere if decision were just made on judge’s discretion. That is not to say that judicial discretion is a bad thing and it should be banned. It just means that judicial discretion should be used minimally and should rules that it must follow. I There should be some kind of positive law that regulates judicial discretion.

I happened to have watched a video in my CAS class about a jury trial where the jury exercised there right to nullify the law in a particular case. The lawyer for the defendant asked the judge to inform the jury that they were allowed to decide against the law if they saw it fit. The judge decided not to because he felt that it would set bad precedent and could eventually led to anarchy. This is why I believe that judicial discretion is a good thing, but only when it is used in minimal instances.