Rule of Law and Judicial Discretion: Their Compatibility and Reciprocal Limitation

• Autores: Etcheverry, Juan Bautista
• Año de publicación: 2018
• Idioma: inglés
• Tipo de recurso: artículo
• Materia: Rule of Law; Judicial Discretion; Arbitrariness; Indetermination of Law
• Institución: Consejo Nacional de Investigaciones Científicas y Técnicas

The aim of this work is to throw some light upon the compatibility between the rule of law desiderata and the phenomenon of judicial discretion. In order to achieve this, first it is necessary to determine what we understand by the terms "rule of law" and "judicial discretion". In this sense, the conception of judicial discretion that is offered in this work takes into account the fact that this phenomenon is partly originated by the inevitable – and, in some cases, even desirable – partial indetermination of law. Thus, the main feature of judicial discretion is linked with a certain margin of freedom that judges have when deciding cases that have at least two justified possible courses of action. In addition to this, this work puts forward a notion of the rule of law desiderata and characterizes the latter as ideals that: (i) aim at serving valuable purposes, (ii) admit degrees of accomplishment, as it is impossible – and, in some cases, even undesirable – to fulfill them either completely or to their greatest possible extent. Based on these notions, this work intends to demonstrate that if the rule of law desiderata are understood as requirements that are not always meant to be fully accomplished, and that even in some cases should not be carried out to their greatest possible extent, then they can be compatible with the phenomenon of judicial discretion.
Fil: Etcheverry, Juan Bautista. Universidad Austral. Facultad de Derecho. Departamento de Filosofía del Derecho y Derecho Constitucional; Argentina. Consejo Nacional de Investigaciones Científicas y Técnicas; Argentina