(This is an archived page, from Edition 2 of the Patterns of Power book. The current versions is at https://www.patternsofpower.org/patterns/legal/elements/discretion/).
Both Britain and America use Common Law as a substantial part of their legal frameworks. This originated from an unwritten assumption that the principles of right and wrong were universally accepted (often having been influenced by religion) and that a court would decide each case appropriately. New cases could be analysed by comparison with previous cases, and new precedents could be established if necessary. Many points of law are never published as statutes, but are established by the cases used as precedents. A comparable use of precedent can also be used when, although the relevant law has been clearly published as a statute, changed circumstances make it appropriate for variations to emerge – at the discretion of the judiciary.
Ronald Dworkin wrote about "the fact that when lawyers reason or dispute about legal rights and obligations, particularly in …hard cases, …they make use of standards that do not function as rules, but operate differently as principles”. He defined a “principle” as “a standard that is to be observed, not because it will advance or secure an economic, political, or social situation deemed desirable, but because it is a requirement of justice or fairness or some other dimension of morality”. He used this terminology to add clarity to the somewhat fuzzy concept of "a judge's discretion", but admitted that “They are controversial, their weight is all important, they are numberless, and they shift and change”.
Both he and Hart quoted examples of cases where rules have to be interpreted. Whether this interpretation involves "discretion" or the weighing of "principles", they agreed that the law develops by the establishment of precedents that result from rulings on cases requiring interpretation: ‘case-law’. They also agreed that, in the process of interpretation, the judge would apply principles which come from the culture of the society to which the law applies, including what Devlin called “public morality” (5.1.4).
It is desirable to avoid the apparent arbitrariness of judges merely using their personal opinions about a society’s values. There are several ways of providing, modifying and using sets of principles that are separate from primary legislation:
· Human rights conventions provide some of the principles that are needed to make judgments in “hard cases”. They also have a role as a legal safeguard against oppression, as is discussed at the end of this chapter (5.4.7).
· A country's Constitution can contain important legal principles. In America, the Supreme Court uses the Constitution to help make judgments about individual cases; and many other countries follow a similar pattern of incorporating principles in their Constitutions. A Constitution can be amended, but normally this requires a more substantial majority than is the case for primary legislation, so it cannot be changed as easily.
· Primary legislation can be less detailed and prescriptive if it is drafted with the knowledge that it would be interpreted in conjunction with published legal principles. Issues of personal freedom and fairness don't need to be painstakingly incorporated in each piece of legislation when they are properly guaranteed by the Constitution or a Bill of Rights.
As will be seen later in this chapter, the use of legal principles in conjunction with primary legislation provides a mechanism for increasing the flexibility of the law (5.4.2), and thereby allows it to be more acceptable to different groups in a pluralist society (5.4.3).
© PatternsofPower.org, 2014