Judicial discretion

Judicial discretion is the inherent power of the judiciary to make legal decisions according to their discretion. Under the doctrine of the separation of powers, the ability of judges to exercise discretion is an important aspect of judicial independence. Where appropriate, judicial discretion gives a judge to decide a legal case or matter within a range of possible decisions. However, where the exercise of discretion goes beyond constraints set down by legislation, precedent or custom (see ultra vires), the court may have abused its discretion.

Concerns with regard to recidivism and other law and order issues has led to the introduction of mandatory sentencing laws which significantly limit judicial discretion in sentencing, particularly in the United States.

Family law

For example, in matters involving parental responsibility, the court may grant residence or contact to one or both parents, or to other parties of significance to the children (eg. grandparents). In the absence of a significant error of law or in the assessment of evidence, an appellate court may not overturn the lower court's parenting orders. However, if on appeal it is established that an incapable parent was granted residence, the court's decision may be overturned. Nevertheless, there is a rebuttable presumption that a trial judge or jury as the trier of fact made a competent decision from the available testimony and other evidence.

References

*Gelsthorpe & Padfield (2003) Exercising Discretion: Decision-making in the criminal justice system and beyond
*Loraine Gelsthorpe and Nicola Padfield, "eds." (2003) "Exercising discretion: Decision-making in the criminal justice system and beyond"


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Look at other dictionaries:

  • judicial discretion — n: discretion(a) Merriam Webster’s Dictionary of Law. Merriam Webster. 1996. judicial discretion …   Law dictionary

  • judicial discretion — A discretion to be exercised judicially rather than arbitrarily. A discretion founded upon the facts and circumstances presented to the court, from which it must draw a conclusion governed by the law. People v Rosner, 78 Cal App 497, 248 P 683.… …   Ballentine's law dictionary

  • judicial discretion — Term is a broad and elastic one which is equated with sound judgment of court to be exercised according to rules of law. People v. Russel, 70 Cal.Rptr. 210, 215, 448 P.2d 794. The option the trial judge has in doing or not doing a thing that… …   Black's law dictionary

  • judicial discretion — judge s assessment, freedom of decision by a judge …   English contemporary dictionary

  • judicial discretion — noun : the choice among possible decisions exercised by a judge according to the principles of justice and equity in the absence of a specific rule of law governing the case …   Useful english dictionary

  • exercise of judicial discretion — See judicial discretion …   Ballentine's law dictionary

  • Discretion — Discretion, Tacuinum Sanitatis casanatensis (XIV secolo) Discretion is a noun in the English language with several meanings revolving around the judgment of the person exercising the characteristic …   Wikipedia

  • discretion — dis·cre·tion /dis kre shən/ n: power of free decision or latitude of choice within certain bounds imposed by law reached the age of discretion struck down death penalty provisions administered through unbridled jury discretion L. H. Tribe: as a:… …   Law dictionary

  • discretion — When applied to public functionaries, discretion means a power or right conferred upon them by law of acting officially in certain circumstances, according to the dictates of their own judgment and conscience, uncontrolled by the judgment or… …   Black's law dictionary

  • discretion — When applied to public functionaries, discretion means a power or right conferred upon them by law of acting officially in certain circumstances, according to the dictates of their own judgment and conscience, uncontrolled by the judgment or… …   Black's law dictionary

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