61 Pages Posted: 24 Dec 2007
In this paper I claim that, where the judge possesses strong discretion, she has both a legal power and the legal right to decide whichever way she wishes. Neither law nor morality provides a decisive ground for decision and all that is left is her taste or inclination.
Perhaps because it looks like a naked exercise of power, the judge's predilections are not a terribly popular basis for judicial decision. Preference is often characterized as non-rational: as having no basis in reason because not based upon some unique reason requiring a particular decision. Reason-based decision, by contrast, is represented as demonstrating that some decisive reason overrides competing ones to settle the outcome of a legal dispute, independent of the judge's will. Absent such a reason, judicial decision consists an arbitrary exercise of the power authoritatively to resolve cases.
I claim that the judge's personal preference or predilection operates as a legitimate basis for judicial decision in cases presenting strong discretion. Strong discretion exists wherever legal rules conflict, and there is no decisive reason determining the outcome. In such circumstances, each of the conflicting rules is undefeated and there is no incorrect thing to do. The judge has both a legal power and a legal right to decide whichever way she wishes.
I contrast my strong discretion thesis with the claim that the judge has only "weak" discretion to resolve the case because extra-legal reasons bind the judge. In particular, I demonstrate that Ronald Dworkin and Joseph Raz, who are often thought to entertain diametrically opposed theories of law, both endorse weak discretion in adjudication and do so for similar, though mistaken, reasons.
Whatever the merits of the weak discretion thesis generally, I argue that strong discretion and preference-based decision is an inevitable and useful feature of complex legal systems. It encourages judges to experiment with different outcomes in circumstances in which they have only a limited ability to foresee the consequences, and no way to determine which among the possible consequences is best.
Keywords: jurisprudence, legal theory, judge, discretion
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