Principle and Discretion

Roger A. Shiner

in Norm and Nature

Published in print September 1992 | ISBN: 9780198257196
Published online March 2012 | e-ISBN: 9780191681721 | DOI:

Series: Clarendon Law Series

Principle and Discretion

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Sophisticated positivism has acknowledged that, to give a proper picture of judicial discretion and the role of principles in legal justification, it is necessary to acknowledge that the court's discretion in a hard case is not ‘strong’, but is circumscribed by a variety of factors. It is also necessary to acknowledge that there may be legal principles, standards to which the judge properly appeals, which underwrite the avoidance of rules, and so of the vice of formalism. These acknowledgements rest on the underlying goal of ‘getting this case just right’, of doing justice to the particular claims before the court. Principles of formal rationality cannot suffice to account for ‘getting this case just right’, and we must understand the goal as a substantial one. The powerful fantasy of Hercules the superhuman judge was elucidated as an articulation of this legitimate goal for adjudication. The notion of the justification of a legal decision which resonates with the goal is one which must admit justifications beginning from principles not necessarily ‘within the law’. If these claims are correct, then a positivistic account of discretion and principle must be mistaken. And it has been shown to be mistaken on the basis of claims about discretion and principle made by sophisticated positivism itself.

Keywords: sophisticated positivism; adjudication; legal justification; judicial discretion

Chapter.  9641 words. 

Subjects: Jurisprudence and Philosophy of Law

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