Hart On Judicial Discretion: Sustaining Citizens’ Confidence In The Law
Ngozi Chukwuemeka Aja Ph.D
Senior Lecturer, Department of Philosophy, University of Port Harcourt Rivers State, Nigeria.
Keywords: Citizen, Confidence, Discretion, Judicial Discretion
Abstract
The paper examined Herbert Lionel Adolphus Hart’s conception of judicial discretion, showing how it could help in sustaining citizens’ confidence in the law. Thus, this study envisages the role of judicial discretion going beyond filling of the vacuum left by legislation, to being the basis of citizen’s unmitigated obedience to the law. It is argued in this paper that Hart’s idea of judicial discretion being a source of law treads a middle course between legal formalism and rule-skepticism, the two evils of the legal process. These extreme positions on legal reasoning that portray judicial discretion as mere arbitrariness in decision-making with which judges unleash their whims and caprices on ordinary citizens, are refuted by Hart’s argument that judicial discretion is validated by the rule of recognition. It then means that judges apply discretion just as they apply laid-down rules and precedents. Thus, citizen’s than seeing judicial discretion as an anomaly should clamour for expansion of the judge’s discretionary powers and also be concerned with dictating when that power is abused.