Copyright (c) 1994 Duke Journal of Comparative & International Law
Duke Journal of Comparative & International Law
ARTICLE: JUDICIAL DISCRETION IN INTERNATIONAL JURISPRUDENCE: ARTICLE 38(1)(C) AND "GENERAL PRINCIPLES OF LAW"
5 Duke J. Comp. & Int'l L. 35
Christopher A. Ford *
The exercise of discretion is at the heart of the institutional and social function known as judgment. Judges doubtless spend most of their time applying well-established law to disputed circumstances of fact, but while there is judgment and discernment involved in such endeavors, such activities do not involve the articulation of new legal norms. Where judging excites the imagination, pricks the conscience and excites passions of all varieties, is in the rarer cases where real law is made, new precedents set, and new rules established where before different ones - or none - clearly existed. This is the exercise of judicial discretion. Not surprisingly, its exercise remains deeply controversial.
American legal history, particularly with respect to the development of American constitutional theory, has long suggested a close nexus between a legal system's approach to the exercise of such discretion and the fundamental notions of legitimacy that underlie that system. 1 Nor is this dynamic unique to American jurisprudence; rather, it has characterized - even convulsed - many of the world's most highly-developed legal regimes. 2 Indeed, tension between judges' creative function and the doctrinal legitimacy of legal rules is a characteristic of any legal system in which norms generally rely for their legitimacy upon institutions or processes that lie outside the conference chamber of its highest court. 3 For unless we are to pretend that judges may have no creative and interpretive role, it will be necessary to find boundaries within which somehow to confine the exercise ...
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