JUDICIAL DISCRETION

Judicial discretion is a very broad concept because of the different kinds of decisions
made by judges and because of the different limits placed on those decisions.
Legal tact is an extremely wide idea due to the various types of choices made by judges and
due to as far as possible put on those choices. Judges choices must be made taking into
account the "standard of law," which, in the United States, gets from statutes went by
Congress as well as from the precepts of the Constitution. What's more, Common Law, or
judge-made law, gives points of confinement in light of the rule of Stare Decisis, which holds
that a court's choice in a specific case must comport with the guidelines of law as they have
been dictated by that court or by other, more elevated amount courts, in past cases.
Legitimate conclusions that don't fit inside of the recommended furthest reaches of both
statutory and normal law may be upset by a checking on court if that court confirms that the
conclusions were a misuse of legal carefulness.
At one time, the sentencing of those indicted violations was completely inside of the
prudence of judges. Judges could consider different alleviating components (circumstances
lessening the level of accuse or blame credited to the guilty party) and art a discipline that
most properly fit the wrongdoing. For instance, a first-time frivolous wrongdoer indicted
shoplifting may be sentenced to Parole and group administration.
With the usage of Federal Sentencing Guidelines and with obligatory least sentencing
enactment, which went in both Congress and the states, judges no more had the wide scope to
make the sentence fit the wrongdoing and the respondent. In a few states, first-time guilty
parties have been sent to imprison for life for the ownership of a lot of controlled substances.
Numerous government judges must imprison parole violators for minor parole infringement
in light of the fact that the rules particularly guide them to and extremely constrain their
sentencing decisions. A judge's inability to keep the sentencing rules in issuing a sentence
would constitute a misuse of legal tact.
The term discretion has always been associated with the notion of choice.
Linguistically, discretion stems from the word judgement or good judgement. It later evolves
to connote personal autonomy in making judgement, assessment or decision. It is the right of
self determination which the actor (discretionary holder) possesses as a consequence of the
responsibility that he has. It refers to a situation in which an official has latitude to make
authoritative choice not necessarily specified within the source of authority which governs his
decision-making. These choices are not only guided by statutory goals, legal criteria but also

inescapably the decision-makers value and experiences. Discretion is not a duty. While duty
would oblige the actor it to do certain act eventhough the procedures or methods to perform
that act is not specified, discretion gives the option to the actor to decide or act as well as the
way the decision or action is to be completed.
Although many had despaired to give a definite legal definition to the term judicial
discretion, most had associated it with the power of the law which is given to the judges to
choose among several alternatives, each of them lawful. It is to be excised prudently after
weighing, reflecting, testing, studying and gaining the impression of the many alternatives.
The term discretion when qualified by the word judicial carries the notion of judges
choosing amongst the available alternatives with reference to the rule of law, reasons, justice
and not according to personal whims. It is where a judge, who has consulted all relevant
legal materials, is left free by the law to decide one way or another within the framework set
by the law. The judge is entitled to choose one that appeal to him from the various numbers of
options. As if the law or the legislature is saying I have determined the content of the legal
norm up to this point. From there on, it is for you, the judge, to determine the content of the
legal norm, for I the legal system, am unable to tell you which solution to choose. It is to be
noted that discretion only exists when there are more than one right and lawful options
available to the judge. It does not exist in situations where judge have to choose between
right and wrong or lawful and unlawful. In these situations, there is a specific obligation on
the judge to choose the right and lawful option. As such, although the term discretion is often
defined as the freedom of choice between several options, this definition is actually an
oversimplification of a term that conveys not only the authority to choose between several
options but the authority to choose between different options for good reasons based on the
facts of the case, the submissions of the parties as well as the law, legal principles, judicial
precedence and norms governing the issue at hand. Therefore, although the judge has the
discretionary power to decide on something, this power cannot be exercise arbitrarily, least it
can be struck out by a higher court.

Example of case:
In this case Maxwell v Kean [1928] 1 KB 645 Atkins LJ said: "... In the proper exercise of a judicial discretion no judge ought to make such an order as
would defeat the rights of a party and destroy them altogether, unless he is satisfied that he

has been guilty of such conduct that justice can only be properly done to the other party by
coming to that conclusion. ".
In the case of Packirisamy v Salvaterra [1970] 2 MLJ 202 J. Sharma said at p 203: "In exercising their discretion it is the duty of the court is to exercise that discretion
judicially, that is in accordance with commonsense and in doing so should bear in mind all
that may promote justice and not defeat it. If discretion is exercised otherwise, it may only
tend to strike at the root of justice or injustice result being done. ".
Referance:
http://www.cljlaw.com/default.asp?page=cotw140221&scrollto=COTW3
http://legal-dictionary.thefreedictionary.com/Judicial+discretion