JUDICIAL DISCRETION. CAUSES, NATURE AND LIMITS

Abstract

This paper proposes to enlighten the role and scope of discretion in judicial decisions. To that end, we will go into the causes of judicial discretion, into the explanation of its nature and into the determination of its boundaries or limits. We will maintain, on the one hand, that some space for judicial discretion is inevitable because it is impossible for a legal system to determine only one legal answer to every possible case. On the other hand, we will also claim that some kind of judicial discretion is not only inevitable but also desirable to allow judicial systems to achieve its goals. We characterize judicial discretion as the decision between open alternatives that judges must make. These discretionary decisions shouldn’t be confused with arbitrary decisions because the first ones always should be based on reasons that can justify them. Further on, we will claim that discretionary judicial decisions are not just new legislation created with any help or guide by law. These decisions are institutionally limited by legal principles, precedents, different legal rules of interpretation, purposes of the rules, etc. They are also different from ordinary legislation because they are binding only for a single case. Finally, we will explain that the area that goes on from the rules to its purposes could be better explained from virtue jurisprudence. This theories have the ability to explain the area between the institutional limits to a discretionary judicial decision and the results of the decision that institutionalize which is the correct answer to the case.