It equally proves, that though individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter; I mean so long as the judiciary remains truly distinct from both the legislature and the Executive. Yet, I work very hard to ground my opposition in substantive arguments many of which are published on Lawfareand not devolve into political barbs…. Did you see in the news this morning that X has just won the Nobel prize. Within a "single" lawsuit, there can be any number of claims and defenses all based on numerous laws between any number of plaintiffs or defendants. There were no allegations along those lines here. Competitive dictatorship is the mechanism we routinely use to control hotels and restaurants; the customers have no vote on what color the walls are painted or what is on the menu, but an absolute vote on which one they patronize.
Discretion in policing and the court system is a necessary and unavoidable facet of criminal justice work, yet it is still very controversial. Discretion exists when courtroom actors police officers, attorneys, judges have the flexibility to choose an appropriate response to a situation. This means that actors with a great deal of discretion at their disposal. Police discretion is a unclear term that has an appropriately vague explanation.
Moral questions impact the law at every corner. It is therefore in judicial discretion that the perception of law is segregated into two main schools of thought: legal naturalism and positivism. The naturalistic claim that the very essence of law is its morality is contrasted by the positivistic allegation of a moral-free code of law. This essay explores judicial discretion in Hong Kong under each discipline and argues that the naturalistic approach is more coherent and justifiable under three accounts: constitutional checks, constructive interpretation, and moral accountability. In pursuit of a thorough analysis, the definitions of law, morality, and discretion must first be interpreted.
What is judicial discretion and how should judicial discretion in sentencing be applied? For centuries courts and commentators alike have wrestled with the concept of judicial discretion. The basic judicial discretion definition is the act of making a choice in the absence of a fixed rule and with regard to what is fair and equitable under the circumstances and the law. Its judicious use increases fairness and can help to promote an equitable legal process by allowing the judge to consider individual circumstances in instances when the law is insufficient or silent.
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