The main claim of this paper is the following: In a typical rational legal system, legal adjudication is necessarily discretional. Discretion is the result of what I call ‘systemic indeterminacy’. Systemic indeterminacy is the thesis that claims that typical rational legal systems that have an interpretative code with more than one interpretative directive and the non-redundancy clause are necessarily indeterminate. Since typical rational legal systems do not have redundant rules a plurality of interpretative directives will necessarily yield a plurality (...) of interpretative results. Due to the non-liquet rule judges are obligated to choose among the different interpretative results provided by the interpretative code. In other words, by building a thesis on legal indeterminacy as the consequence of having a plurality of interpretative directives that necessarily yield different results, I proceed to provide an account of discretion as a necessary feature of legal adjudication. (shrink)

H.L.A. Hart’s lost and found essay ‘Discretion’ has provided new insight into the issue of how legal systems can cope with indeterminacy in the law. The so-called ‘open texture’ of law calls for the exercise of judicial discretion, which, I argue, renders judges susceptible to the problem of dirty hands. To show this, I frame the problem as being open to an array of appropriate emotional responses, namely, various senses of guilt. With these responses in mind, I (...) revise an example from Michael Walzer’s original analysis in a way that highlights purely personal sacrifices in solutions to dirty hands situations. I then turn to an account of moral emotions in legal decision-making and show how judges—in failing to advance all interests—might be left with a unique sense of guilt. With an application of this account to Hart’s legal positivism, it can be seen that a judge’s hands are often dirtied in resolving borderline cases. If discretion leaves judges in situations where they must do wrong in order to do right, Hart’s endorsement of a closure view of wrongdoing will lead to difficulties in how he can explain the presence of moral remainders in jurisprudence. (shrink)

The main aim of this paper is to clarify the dispute over judicial discretion by distinguishing the different senses in which claims about judicial discretion can be understood and by examining the arguments for these various interpretations. Three different levels of dispute need to be recognized. The first concerns whether judges actually do exercise discretion, the second involves whether judges are entitled to exercise discretion, and the third is about the proper institutional role of (...) judges. In this context, the views of Dworkin, Raz, Perry, Greenawalt, and Sartorius are examined. Finally, it is suggested that a resolution of the judicial discretion controversy requires a satisfactory theory of the justification of judicial decisions. (shrink)

There have been few studies of the Law Lords, and no study of them by a political scientist for more than ten years. This book concentrates on the arguments the Law Lords use in justifying their decisions, and is concerned as much with the legal methodology as with the substance of their decisions. Very close attention is paid to the different approaches and styles of judicial argument, but the book is not restricted to this traditional analytic approach. One chapter (...) applies the statistical techniques Americans call 'jurimetrics' and have successfully used on the US Supreme Court. The main theme is that the Law Lords enjoy and fully utilise far more discretion in their judgements than is normally admitted, and that much depends on exactly which judges happen to hear a case. the second part of the book shows the impact this extreme discretion has had in shaping both public law and areas of civil law. (shrink)

The theoretical core of positivism is thought to consist of three theses about the nature of law. The separability thesis denies the existence of necessary moral constraints on the content of law. The pedigree thesis articulates necessary and sufficient conditions for legal validity having to do with how or by whom law is promulgated. The discretion thesis asserts that judges decide hard cases by making new law. While it is often assumed that these theses form a coherent theoretical whole, (...) such an assumption is false. Construed as a claim about all possible legal systems, the discretion thesis is inconsistent with the pedigree thesis. Construed as a claim that is true in some, but not all, possible legal systems, the discretion thesis makes a fundamentally different kind of claim than those made by the pedigree and separability theses and hence should not be thought of as part of positivism's theory of law. (shrink)

H. L. A. Hart’s The Concept of Law (Hart 1994) contains many passages that have become iconic for legal theory. This essay focuses on Chapter 7, sections 1 and 2, and Hart’s comments about judicial discretion in the context of Ronald Dworkin’s well-known attack on the idea of judicial discretion in his essay “The Model of Rules”. Specifically, the paper undertakes three projects. The first project is to defend the importance of the fundamental picture that Hart (...) presents in Concept, Chapter 7 of Common-Law judicial rule-making. Hart represents such rule-making as a balance of certainty and flexibility, and he is correct to do that. The second project is to argue that Dworkin’s attack on the positivist model of common-law judicial rule-making as an exercise of “strong discretion” fails. The idea, central to the meaning of “strong discretion” that courts are not “not bound by standards set by the authority in question” cannot be established. The third is to argue that Hart is his own worst enemy. The language, metaphors and images he uses to present his account of common-law judicial rule-making open the way to Dworkin’s critique. They also reveal Hart, if the language, metaphors and images are taken seriously, to be precisely the kind of formalist or deductivist about adjudication that he is ostensibly in Concept Chapter 7 criticising.Resumen:El concepto de derecho (1994) de H. L. A. Hart, contiene muchos pasajes que se han convertido en íconos de la teoría jurídica. Este artículo se concentra en el capítulo 7, sección 1 y 2, y en los comentarios que realizara Hart sobre la discreción judicial en el contexto de la bien conocida crítica de Dworkin a esta misma idea en su ensayo “El modelo de las normas”. Específicamente, el artículo emprende tres proyectos. El primero de ellos consiste en defender la importancia del esquema fundamental que ofrece Hart en el capítulo 7 de su obra, esto es, la creación judicial de normas en el Common Law. Hart representa tal creación de normas como un balance de certeza y flexibilidad; y él está en lo correcto al presentarlo de tal modo. El segundo proyecto consiste en argumentar que la crítica de Dworkin al modelo positivista de la creación judicial de normas en el Common Law, como un ejercicio de “discreción fuerte”, no está sustentada. La idea —central para el significado de “discreción fuerte”— de que los tribunales no están “sujetos a criterios establecidos por la autoridad en cuestión” no puede ser establecida. El tercer proyecto consiste en argumentar que Hart es su peor enemigo. El lenguaje, las metáforas e imágenes que emplea para exponer su teoría de la creación judicial de normas en el Common Law abre la puerta a la crítica dworkiniana. Si tomamos en serio el lenguaje, las metáforas y las imágenes, encontraremos a un Hart del tipo formalista o deductivista sobre la adjudicación, justo como el que él mismo está abiertamente cuestionando en el capítulo 7 de El concepto. (shrink)

A number of increasingly sophisticated technologies are now being used to support complex decision-making in a range of contexts. This paper reports on work undertaken to provide decision support in the discretionary domain of sentencing by referring to a recently created Toulmin argument based model that involves the interplay and weighting of relevant rule-based and discretionary factors used in a decisional process. Judicial discretion, particularly in the sentencing phase, is one of the mainstays of justice systems that favour (...) individualised justice. The study discusses the modelling process in Victorian courts in Australia, where the handing down of an appropriate custodial or non-custodial sentence requires the consideration of many factors. Tools and techniques used to capture relevant expert knowledge and display it both as a paper model and as an online prototype application are discussed. (shrink)

This article investigates the concept and the construction of judicial discretion. The strengths and weaknesses of both Dworkin and Hart are analysed, and in view of these, it is argued that a full picture of judicial discretion is between the two extremes. Thus, a moderate theory of judicial discretion is maintained which is based on achievements by Robert Alexy (2002b). The article develops a balancing model of discretion and relates it to the theory (...) of legal argumentation. The limits of discretion and the relation between structural (strong) and epistemic (weak) discretion are addressed in detail, both with illustrations from the jurisdiction of the German Federal Constitutional Court. (shrink)

The following two theses seem both plausible and consistent: in cases where it is indeterminate whether the relevant legal language applies to the relevant set of facts, officials are not bound to decide the case one way rather than the other, but may reason either way; all reasons for action are—in some relevant sense—knowable. In this paper, I point out what I take to be a robust but unacknowledged tension between these two claims. The tension requires some careful teasing out, (...) but the basic idea is that given certain further plausible assumptions concerning law, language, and normativity, the two claims turn out to be inconsistent. In addition to examining the sources of the tension in some detail, I also address several possible objections to my argument and discuss which of the many theses should be rejected. (shrink)

Rousseau's understanding of legislation as the expression of the general will implies a constitutional principle of legislative supremacy. In turn, this should translate to a narrow, mechanical account of adjudication, lest creative judicial interpretation subvert the primacy of legislative power. Yet in his constitutional writings, Rousseau recommends open-textured and vague legislative codes, which he openly admits will require judicial development. Thus he apparently trusts a great deal in judicial discretion. Ostensibly, then, he overlooks the problem of (...) how legislative indeterminacy—and correspondingly, judicial discretion—may undermine the authority of the general will. However, I argue that Rousseau aims to check judicial subversion of legislative supremacy simply by extending his broader social politics—and specifically, his peculiar concept of republican virtue—to the domain of law. His main concern is that the law should not develop as a mystifying expert practice; therefore, he necessarily rejects any understanding of judicial virtue as lying in principled discourse. Instead, he envisages that judicial power will be checked by a more generic sense of republican virtue. In turn this echoes his apprehension of social differentiation and social complexity as sources of domination and hierarchy. (shrink)

Negative externalities pervade immigration law. For example, immigration rules can cause negative economic externalities by barring foreign nationals whose participation would make labor markets more efficient. On the other hand, sweeping executive-branch measures to assist immigrants may unduly expand executive power and yield adverse effects on governance. This essay divides immigration's negative externalities into three categories: economic, relational, and rhetorical. It then argues for specific legal and policy measures, including tailored executive discretion over deportation; more robust court review of (...) immigration restrictions that affect foreign nationals outside the United States; and classifying deportation of lawful permanent residents of the United States as punishment requiring advance notice that specific acts can prompt removal, like the notice the Constitution's Ex Post Facto Clause requires for criminal laws. (shrink)

In 2001, three non-Aboriginal men in their twenties were charged with the sexual assault of a twelve year old Aboriginal girl in rural Saskatchewan. Legal proceedings lasted almost seven years and included two preliminary hearings, two jury trials, two retrials with juries, and appeals to the provincial appeal court and the Supreme Court of Canada. One accused was convicted. The case raises questions about the administration of justice in sexual assault cases in Saskatchewan. Based on observation and analysis of the (...) record, this paper: (1) examines relationships between legal errors dealing with availability of the defence of “belief in consent” and interpretation of the “all reasonable steps” provision, the need for retrials, and apprehended race-gender-age bias and discrimination; and 2) proposes incremental and systemic remedies to address the weaknesses in police, prosecutorial and judicial policy and practice highlighted by this case. (shrink)

In this essay, I argue against a way of approaching the issue of Judicial discretion that finds its clearest exposition and highest development in recent works by Ronald Dworkin. This approach is too narrow. It ignores a kind of Judicial discretion whose existence has been maintained by jurists with discretionist sympathies, and which is philosophically significant. The kind of discretion it ignores raises the issue of the justification of adjudication as clearly as does the kind (...) of discretion that it recognizes. Moreover, discussion of the kind of discretion ignored is in some respects the natural starting place for a discussion of judicial discretion in general. (shrink)

The legal reasons that bind a judge and the moral reasons that bind all persons can sometimes pull in different directions. There is perhaps no starker example of such judicial dilemmas than in criminal sentencing. Particularly where mandatory minimum sentences are triggered, a judge can be forced to impose sentences that even the judge regards as “immensely cruel, if not barbaric.” Beyond those directly harmed by overly harsh laws, some courts have recognized that “judges who, forced to participate in (...) such inhumane acts, suffer a loss of dignity and humanity as well.” When faced with such a judicial dilemma—a powerful tension between the judge’s legal and moral reasons—the primary question is what a judge can do to resolve it. We argue that the two standard responses—sacrificing morality to respect the law (“legalism”), or sacrificing the law to respect morality (“moralism”)—are unsatisfying. Instead, this Article defends an underexplored third response: rather than abandoning one ideal to maximally promote the other, we argue that judges should seek to at least minimally satisfy the demands of both. Judges should, in other words, look for and employ what we dub Satisficing Options. These are actions that enjoy sufficient support from both the legal reasons and the moral reasons, and thus are both legally and morally permissible—even if the acts in question would not strictly count as optimal by the lights of the law or morality. This common sensical response to the problem is not only underappreciated in the literature, but also has great practical import. Focusing on the sentencing context, this Article demonstrates that judicial dilemmas can be systematically resolved, mitigated or avoided through a range of concrete strategies that on their own or in conjunction can constitute Satisficing Options: these strategies include seeking out legally permitted but morally preferable interpretations of the law, expressing condemnation of unjust laws in dicta, and seeking assistance or cooperation from other actors to help defendants facing substantively unjust mandatory sentences. While these strategies can at times also go too far, we argue that in certain contexts they can be sufficiently defensible on both legal and moral grounds to be a justifiable response to judicial dilemmas. This Article thus provides both a novel theoretical framework for understanding the justification of judicial responses to unjust laws, as well as a practical a menu of options which judges can use to guide their responses to the judicial dilemmas that they are increasingly likely to encounter within our criminal justice system. (shrink)

This article addresses the pressing issue of what process courts should use to identify those questions whose resolution lies beyond their appropriate capacity and legitimacy. The search for such a process is a basic constitutional problem that has defied a clear answer for well over a hundred years. The chequered history of earlier attempts illustrates why commentators have once again begun to gravitate towards institutional approaches. The general features of institutional approaches include emphasis on uncertainty, judicial fallibility, systemic impact, (...) collaboration between branches of government and incrementalism in judging. These features, however, are relied upon in support of two conflicting views of the role of judges in public law adjudication. One is restrictive, and advocates sharp limitations to the ambit of judicial review. The other is contextual, and, in stark contrast, it proposes to expand the ambit of review in reliance on the idea of using principles of restraint to structure the exercise of judicial discretion. While this article does not take sides between them, it nonetheless seeks to refine the contextual institutional approach by outlining a general framework for reasoning with principles of restraint, and by addressing some of the key difficulties such a reasoning process would face. (shrink)

"In this paper I shall attempt to sketch a defense of the plain man's view that the job of the judge, qua judge is to apply the law." What seems to have lead to the other view is the pervasive role of policy and principle in the justification of judicial decisions. This is no argument, however, for the existence of discretion: "For while it must be admitted that judges are entitled to appeal to certain general policies and principles, (...) this by no means implies that they are entitled to exercise discretionary judgment in the formulation of such standards." With Dworkin, distinguishes weak and strong discretion: the former means merely final or controversial; the latter implying that judges are at some point free to reach decisions not controlled by authoritative standards. Agrees with Dworkin that non-rule standards are part of law. "Both Dworkin and I are in agreement that law is a system of entitlements, although, as we shall see, we differ as to what is their basis." "At any rate, we share the view that a litigant before a court of law is not in the position of one begging a favor from a potential benefactor, but rather in that of one demanding a particular decision as a matter of right, as something to which the law entitles him. Such a demand has two aspects: a claim that a right exists which the law recognizes; a claim that this right takes precedence over any competing legal rights or obligations involved. Let us refer to these two sorts of claims respectively as ones involving decisions as to recognition, and weight.:" Argues that we cannot distinguish between legal moral principles and non-legal moral principles without a rule of recognition. The same is true for the problem of establishing weight between various principles - here we have to consider how well a principle coheres with the institutional practice of a legal system. "[I]t is the distinctive feature of the institutionalized role of the judiciary, in contrast to the legislative, that it may not directly base decisions on substantive considerations of the value of competing social policies." "The theoretical possibility of the law being indeterminate with regard to what it requires...does not imply any correspondign indeterminacy with regard to what is required of the judge.". (shrink)

Some critics raise moral objections against corporate social responsibility on account of its supposedly undemocratic nature. Theyargue that it is hard to reconcile democracy with the private discretion that always accompanies the discharge of responsibilities that are not judicially enforceable. There are two ways of constructing this argument: the “perfect-market argument” and the “social-power argument.” This paper demonstrates that the perfect-market argument is untenable and that the social-power argument is sometimes valid. It also asserts that the proponents of the (...) perfect-market argument are mistaken in their assumption that perfect markets are conducive to democracy. There are strong reasons to hold that perfect markets are undesirable from a democratic point of view. A proper conceptualization and differentiation of the relation between “the private and the public” can make this clear. The proponents of the social-power argument sometimes maintain that the democratic deficit can be compensated for by consulting the stakeholdersaffected. Against this, I will argue that the social power argument has nothing to offer affected parties. Still, it will be shown that moderntheory on corporate social responsibility is not well accommodated to the democratic deficit as revealed by the social power argument. (shrink)

This essay challenges Dworkin's account of the virtues and consistency of applying the right answer as given by a certain interpretive theory of local law (hereafter, the D-theory) with democratic theory. D-theory adjudication does not have all the virtues Dworkin claims for it. It may involve judicial law-creation as well, rather than being confined to the discovery of preexisting legal rights. It may also involve any of the morally objectionable features of judicial law-creation, including unfairness. It is not (...) immune to the objection based on democratic theory that Dworkin considers. Moreover, discretionary judicial law-creation is free of some of the vices that concern Dworkin. For these reasons, neither Dworkin's view of D-theory adjudication nor his denial that judges commonly have legislative discretion seems to be especially significant for the justification of appellate adjudication. (shrink)

Much legal research focuses on understanding how judicial decision-makers exercise their discretion. In this paper we examine the notion of legal or judicial discretion, and weaker and stronger forms of discretion. At all times our goal is to build cognitive models of the exercise of discretion, with a view to building computer software to model and primarily support decision-making. We observe that discretionary decision-making can best be modeled using three independent axes: bounded and unbounded, (...) defined and undefined, and binary and continuous. Examples of legal tasks are given from each of the eight ensuing octants and we conclude by saying what this model shows about current legal trends. We should stress that our taxonomy has been based on our observations of how discretionary legal decisions are made. No claim is made that our model is either complete (providing advice in every domain) or exact, but it does help knowledge engineers construct legal decision support systems in discretionary domains. (shrink)

The judicial appointments regime in England and Wales is unbalanced. The pre-2005 appointments regime conferred excessive discretion on the Lord Chancellor, but the post-2005 regime has gone much too far in the opposite direction. Today, the Lord Chancellor is almost entirely excluded from the process of selecting lower level judges and enjoys only limited say over the selection of senior judges. In this article I argue that the current regime places too little weight on the sound reasons for (...) involving the minister in individual selection decisions, including the scope for ministerial input to enhance judicial independence, to supply political leadership on judicial diversity and to render more effective the discharge of the Lord Chancellor’s systemic responsibility for the justice system as a whole. I argue that shortlists reconcile the need to more fully involve the Lord Chancellor whilst at the same time ensuring that candidates satisfy a merit threshold. (shrink)

Robert Alexy has argued that the democratic objection to judicial review of legislation can be successfully addressed by assuming that judges exercise a special form of argumentative representation. In this article we argue that Alexy does not explain (as he should) under what circumstances judicial review tends to produce better decisions than parliamentary procedure, nor does he explain how judicial review can have a greater intrinsic value than parliamentary procedure. Subsequently, we argue that the intrinsic value of (...) argumentative representation depends on the promotion of citizen deliberation, whereas its instrumental value depends on judges being committed to the rights of discrete and insular minorities in the face of hostile majorities. (shrink)

ABSTRACT Scholars have understood Aristotle’s theory of equity in two different ways. On the one hand, some claim that equity is an extra-normative criterion, that is, it goes beyond the law and reaches a supra-legal level identified with a metaphysical order of natural justice. On the other hand, some hold that equity is intra-normative, that is, the judge rectifes legal justice without going beyond its limits. Considering this second point of view and by using a methodology that combines legal philosophy (...) and some of the main theories about emotions in ancient Greece, this paper aims to demonstrate that equitable judges should not have broad discretion according to Aristotle’s thought. To hold that claim, I will mainly address the role of emotions in the formation of judgment and the power they have to endanger the possibility of giving just and rational judicial decisions. (shrink)

This chapter contains sections titled: Jurisprudence: Method and Subject Matter Legality and Authority Positivism: Austin vs. Hart The Authority of Law Judicial Discretion Incorporationism and Legality Raz' s Theory of Authority Incorporationism and Authority Conclusion Postscript References.

In English law, there are various ways in which contracts can be invalid or unenforceable because they are immoral — and yet English lawyers know that many contracts are conclusively binding. The first two sources of legal gaps that Joseph Raz identifies do not seem surprising. Vagueness in the sources of law leads to gaps in borderline cases, and there is a gap if the law includes inconsistent rules, with no way of deciding which is effective. In those situations it (...) seems right to say that the law does not tell people where they stand, so that people may need a court to make a decision. But if Raz is right about the third source of gaps, then judges have discretion whenever the law appeals to moral considerations. This chapter discusses the sources thesis, moral considerations, judicial discretion, the social morality of judges, and contract law. (shrink)

A practising lawyer is not always aware of the fact that case decisions are more determined by legal doctrine – attitudes of authoritative lawyers and scientific legal discussion of other forms – than by changes in positive law. Regulations of specific case decisions are directly reliant on the ideas and statements of legal discussions – as one of the factors influencing the decisions of the courts. During the twenty years of independence, the form, content and argumentation of the Lithuanian court (...) judgments has fundamentally changed, especially with regard to the understanding of the courts (the judiciary) in terms of how unrestrained they are when interpreting a legal text and making decisions. The judicial discretion to interpret a legal text is treated diversely in various legal traditions and within the scope of the western legal tradition itself. In common law countries, the competence of a judge to deviate from a legal text or to create their own legal framework is treated with much greater understanding. In civil law tradition, the attempts of judges to take over the functions of the legislature are usually considered more critically. Even the representatives of comparative law emphasise that judges in civil law tradition countries tend to call the creation of legal rules differently – mostly as interpretation of the law. The discussion on the power of judges to create law through its interpretation has been taking place everywhere and at all times. Judicial discretion in decision-making is not due to individual factors such as era, social structure, cultural background, but is determined by some other factors that are not easy to identify. The interpretative activity of the courts is also influenced by the prevailing doctrinal regulations of judicial activity. It is the changes of the Lithuanian legal doctrines that could have encouraged the courts to determine the scope of their activity in the direction of its growth. After the restoration of independence, the Lithuanian legal community began an active discussion on whether legal positivism was the correct form of legal understanding. Studies appeared, in which legal positivism was seen exclusively negatively, reminding that it was specifically this legal concept that had eliminated values from law and was likely to be blamed for the ills of humanity such as the Holocaust or genocide. Numerous publications emerged calling judges to be active and reminding them to check every rule of law in accordance with its consistency with the principles of law and to disapply any rule of law that did not meet this requirement. Almost universally, lawyers (and especially the courts) were encouraged to move from mechanical (a priori improper) application of the law to the creative (a priori the best and aspirational) one. The courts were encouraged: they started to freely interpret legal rules, under which the legislature established their competence; although court judgments have become more reasoned, this did not prevent them from applying speculative or ambivalent arguments; criticism could be expressed to courts due to lengthy processes that are, objectively looking, not required, and for low activity in exercising their powers to prevent abuse of law. Respect for the legislature directly responsible for creating legal rules and taking care of legal protection, judicial recognition that a court should deviate from the legal text or otherwise create new rules only when it is objectively inevitable, and lawyers’ societal openness to discussion on various issues – these can become conceptual prerequisites for higher confidence in the courts. (shrink)

This book offers an original theory of adjudication focused on the ethics of judging in courts of law, and proposes two main theses. One is the good faith thesis, which defends the possibility of lawful judicial decisions even when judges exercise discretion. The other is the permissible discretion thesis, which defends the compatibility of judicial discretion and legal indeterminacy with the legitimacy of adjudication in a constitutional democracy. Together these two theses oppose both conservative theories (...) that would restrict the scope of adjudication unduly, and leftist critical theories that would liberate judges from the rule of law. (shrink)

A basic principle in sentencing offenders is proportionality. However, proportionality judgments are often left to the discretion of the judge, raising familiar concerns of arbitrariness and bias. This paper considers the case for systematizing judgments of proportionality in sentencing by means of an algorithm. The aim of such an algorithm would be to predict what a judge in that jurisdiction would regard as a proportionate sentence in a particular case. A predictive algorithm of this kind would not necessarily undermine (...) justice in individual cases, is consistent with a particularistic account of moral judgment, and is attractive even in the face of uncertainty as to the legitimate purposes of punishment. (shrink)

This paper investigates the process of reasoning through which a judge determines whether a precedent-case gives her a binding reason to follow in her present-case. I review the objections that have been raised against the two main accounts of reasoning by precedent: the rule-account and the analogy-account. I argue that both accounts can be made viable by amending them to meet the objections. Nonetheless, I believe that there is an argument for preferring accounts that integrate analogical reasoning: any account of (...) reasoning by precedent that is descriptively minimally adequate will leave some room for judicial discretion. Discretion should be used under consideration of the best legally relevant arguments for and against a decision. Integrating analogical reasoning helps the judge to bring to her own attention the strongest case for following. Analogical reasoning also eases the recognition of possible reasons for distinguishing. Thereby, it facilitates a more balanced decision-making process. (shrink)

Few automated legal reasoning systems have been developed in domains of law in which a judicial decision maker has extensive discretion in the exercise of his or her powers. Discretionary domains challenge existing artificial intelligence paradigms because models of judicial reasoning are difficult, if not impossible to specify. We argue that judicial discretion adds to the characterisation of law as open textured in a way which has not been addressed by artificial intelligence and law researchers (...) in depth. We demonstrate that systems for reasoning with this form of open texture can be built by integrating rule sets with neural networks trained with data collected from standard past cases. The obstacles to this approach include difficulties in generating explanations once conclusions have been inferred, difficulties associated with the collection of sufficient data from past cases and difficulties associated with integrating two vastly different paradigms. A knowledge representation scheme based on the structure of arguments proposed by Toulmin has been used to overcome these obstacles. The system, known as Split Up, predicts judicial decisions in property proceedings within family law in Australia. Predictions from the system have been compared to those from a group of lawyers with favourable results. (shrink)

H. L. A. Hart and the "Open Texture" of Language tries to clarify the writings of both Hart and Friedrich Waismann on "open texture". In Waismann's work, "open texture" referred to the potential vagueness of words under extreme (hypothetical) circumstances. Hart's use of the term was quite different, and his work has been misunderstood because those differences were underestimated. Hart should not be read as basing his argument for judicial discretion on the nature of language; primarily, he was (...) putting forward a policy argument for why rules should be applied in a way which would require that discretion. (shrink)

This essay focuses on proportionality stricto sensu as a consequential test of balancing. The basic balancing rule establishes a general criterion for deciding between the marginal benefit to the public good and the marginal limit to human rights. Based on the Israeli constitutional jurisprudence, this essay supports the adoption of a principled balancing approach that translates the basic balancing rule into a series of principled balancing tests, taking into account the importance of the rights and the type of restriction. This (...) approach provides better guidance to the balancer , restricts wide discretion in balancing, and makes the act of balancing more transparent, more structured, and more foreseeable. The advantages of proportionality stricto sensu with its three levels of abstraction are several. It stresses the need to always look for a justification of a limit on human rights; it structures the mind of the balancer; it is transparent; it creates a proper dialog between the political brunches and the judiciary, and it adds to the objectivity of judicial discretion. Proportionality stricto sensu however has it critics: some claim that it attempts to balance incommensurable items; others that balancing is irrational. The answer to the critics is that it is a common base for comparison, namely the social marginal importance and that the balancing rules—basic, principled, concrete—supply a rational basis for balancing. A democracy must entrust the judiciary—the unelected independent judiciary—to be the final decision-maker—subject to constitutional amendments—about proper ends that cannot be achieved because they are not proportionality stricto sensu. (shrink)

Widespread, deep controversy as to the content of the law of a community is compatible with the view that the law is a system of rules. I defend that view through a critique of Ronald Dworkin's discussion of Riggs v. Palmer 22 N.E. 188. Dworkin raised an important challenge for jurisprudence: to account for the fact that legal rights and duties are frequently controversial. I offer an explanation of the possibility of deep disagreement about the application of social rules, which (...) reconciles controversy as to the content of the law, with the model of a legal system as a system of rules. And I discuss the implications for understanding the role of judicial discretion in law. (shrink)

The general mitigating and aggravating circumstances of criminal liability are elements attached to the crime that, when they occur, affect the punishment quantum. Cuban criminal legislation provides a catalog of such circumstances and some general conditions for their application. Such norms give judges broad discretion in assessing circumstances and adjusting punishment based on the intensity of those circumstances. In the interest of broad judicial discretion, the law does not establish specific ways for measuring circumstances’ intensity. This gives (...) judges more freedom and autonomy, but it also imposes on them more social responsibility and challenges them to manage the uncertainty and subjectivity inherent in this complex activity. This paper proposes a model to aid the linguistic assessment of circumstances’ intensity and to provide linguistic and numerical recommendations to determine an appropriate punishment interval. M-LAMAC determines the collective evaluation of circumstances of the same type, determines the prevalence of a type of circumstance by means of a compensation function, recommends the required modification in the input interval, and finally recommends a numerical interval adjusted to the judges’ initially expressed preferences. The model’s applicability is demonstrated by means of several experiments on a fictitious case of bank document forgery. (shrink)

This article focuses on the location of the duty of loyalty—a unique legal norm in Common Law jurisdictions—both actual and desirable, on the continuum between rules and standards. A rule is a relatively ‘closed’ technical norm, at a high level of specificity; it requires little judicial discretion. A standard is an ‘open’ norm, with a greater degree of flexibility, that requires the exercise of discretion. The insights from this jurisprudential perspective are used to reveal the preferred way (...) for further developing the duty of loyalty. The article explains that ‘loyalty,’ intuitively classified as a ‘pure’ standard, has been reconstructed over time as more specific rules. Moreover, it suggests that, ideally, this movement should continue; namely, when applying loyalty to a specific case, courts should include informative content that would promote predictability. It then illustrates that, unfortunately, this road is not always taken by the courts. A decision to retain loyalty as an ad hoc standard, or an inverse attempt to delineate the boundaries of this norm, has implications on the certainty, consistency, and ethical content of the law. Considering that this duty spreads across different legal fields, personal and commercial, the significance of this discussion becomes all the more evident. (shrink)

Rights have two properties which prima facie appear to be inconsistent. The first is that they are conditional in the sense that one some occasions it is always justifiable for someone to act in a way which appears to be inconsistent with someone else's rights, such as when the defence of necessity applies. The second is that rights are indefeasible in the sense that they are not subject to being defeated our outweighed by utilitarian or policy considerations. If we view (...) rules and the rights which they establish as being subject to a ceteris paribus clause, the form of which generates out the exceptions, the conditionality of rights becomes reconcilable with their nondefeasibility. Such a view of rules and rights would entail that the goals of the law and their orderings be considered as a part of the law. When so viewed, propositions about goals and their orderings become legitimate premises for legal reasoning, furnishing solutions to hard cases in the law of torts, without resort to balancing of interests or judicial discretion. (shrink)