The argument between natural law theorists and legal positivists stems into the larger controversial argument of judicial discretion. Legal realists see judicial discretion as a norm and the responsibility that we have given judges. In appointing them to such a high overbearing position, they believe that we have given them both the right and responsibility to make decisions that span past the black and white lines that laws create. Where these lines should be placed and when they should have the ability to be moved or "muddled" is a debate that has been part of the judiciary for quite some time.
Judicial discretion is necessary to deal with the factors of life and crime that they law leaves out, overlooks, or is not recent enough to encompass. The reason that there is much questioning and investigating into the values and pasts of Supreme Court judge nominees is to find out their biases and find out whether they are able to make decisions based on the law or based on their own personal viewpoints. At some point a line does need to be drawn on the amount of discretion that any judge, whether that of the Supreme Court or not, is allowed to have without overstepping the law itself.
Laws were created for a reason. Amendments exist for a purpose. With life enhancements over time, and a change in societal values, it is necessary for laws to adapt. But, the basis for those laws shall not be altered. Without a limit on judicial discretion, the law can be lost in the judgement of the judiciary. Judicial discretion is necessary to sympathize and change the standards for which the law is practiced, but it must be limited in order to ensure the integrity of the laws and the foundation of government.
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I think you made some very good points on this topic. And while it does make sense to limit judicial descretion and to "draw a line somewhere", I feel that as laws adapt and new situations crop up, it will be even more important to have honest judges in the judiciary who are capable of making sound decisions based on moral and reasonable discretion. I do not feel that we need to limit judicial descretion anymore, rather focus on placing responsible individuals into the seats of justice.
ReplyDeleteI think it is really important to realize that the powers of the Supreme Court allow the court to make decisions and establish precedent within the law. We have allowed the court the power of judicial review, this power is one of the greatest powers of law afforded to a court in the entire world. The justices that sit on the supreme court make decisions based on many factors, some more law guided than others. It is important to realize that judges for the Supreme Court are empowered to make law by deciding cases that are before it. This law is called case law and leads to a better understanding and clarifications of the constitution, amendments, and other sources of law in our country. This "Judicial discretion" is a little bit different from the standard judicial discretion found in lower courts.
ReplyDeleteDiscretion is really just asking the judge to decide how outdated a law is, and convey that through their interpretation of it. They only have to answer one question: do I keep precedent? You are right when you say there should be limits on judicial discretion, but also consider the opposite: what if a law truly is obsolete, but judges won't interpret it differently because they are hiding behind the banner of "precedent?"
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