Judicial Discretion

The power the law gives the Court or a judge to choose among two or more alternatives, each being lawful.

In Judicial Discretion, jurist Aharon Barak wrote:

"Judicial discretion ... is ... a legal condition in which the judge has the freedom to choose among a number of options.

"Where judicial discretion exists, it is as though the law were saying: I have determined the contents of the legal norm up to this point. From here on, it is you, the judge, to determine the contents of the legal norm for I, the legal system, am not able to tell you which solution to choose.

"It is as though the path of the law came to a junction, and the judge must decide - with no clear and precise standard to guide him - which road to take."

In Sharp v Wakefield, Justice Halsbury wrote:

"Discretion means, when it is said that something is to be done within the discretion of the authorities, that that something is to be done according to the rules of reason and justice, not according to private opinion; according to law and not humour. It has to be not arbitrary, vague and fanciful, but legal and regular. And it must be exercised within the limit, to which an honest man, competent to the discharge of his office, ought to confine himself."

In Rooke's Case, Justice Edward Coke wrote:

"Discretion is a science of understanding, to discern between falsity and truth, between wrong and right, between shadows and substance, between equity and colourable glosses and pretences, and not to do according to their men's will and private afffections."

Albeit rarely, the term does occur in statute such as §5 of the Family Law Act of Newfoundland which provides that as concerns matrimonial property cases before them, judges are to use their:

"... judicial discretion in sharing business assets built up by a spouse during a marriage."

Indeed, judicial discretion is prevalent in family law so as to allow the judges of the court flexibility in determining in arriving at the most just result in cases involving child custody, spousal support and a division of alleged family assets.

REFERENCES:

• Barak, A., Judicial Discretion (New Haven: Yale University Press, 1987), page 8.
• Family Law Act, Revised Statutes of Newfoundland and Labrador 1990, Chapter F-2
• Rooke's Case (1598) 5 Rep. 99b
• Sharpe v Wakefield 1891 AC 173