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Strict Rules And Discretion Between

Posted on:2004-09-30Degree:DoctorType:Dissertation
Country:ChinaCandidate:L L CuiFull Text:PDF
GTID:1116360095955771Subject:Legal history
Abstract/Summary:PDF Full Text Request
There is an inherent conflict between legal rule and judicial discretion in judicial process. Britain judges and American judges will behave in different inclination when they face to the conflict. Britain judges will incline to abide by legal rules sternly and American judges will incline to exercise judicial discretion. The regular difference of behavior, on which the judges of these two countries will be, is the difference in judicial style between England and U.S.A. By studying and analyzing a series of cases in applying of legal rule in judicial process, the author makes comparisons between England and U.S.A on the regular difference in judicial style.Principle of stare decisis, which is the most important principle in case law, is applied in different ways in England and U.S.A. The principle of stare decisis was born in England and not established until 19th ultimately. The principle takes root deeply in society of England; But it is a tortuous course for U.S.A receiving the principle that applying of the principle in U.S.A is not so smoothly and stiffly as in England. Britain judges abided by the principle sternly, they don't want to challenge binding precedents, even if the binding precedent which is out of time or defective perhaps. They prefer to stick up for authority of law; Most of American judges never consider the principle of stare decisis as unshakeable. They will overthrow or disregard the binding precedent, which will results in absurd or unfair judgments inevitably, by exercising judicial discretion. Even if overthrowing the binding precedent, the gist, which Britain judges incline to according to is a legal rule itself so that it is unalterable; The gist by which American judges exercise judicial discretion is spring and broad, such as justice, morality, policy, etc. Britain judges adhere to that it is the duty of the Parliament to amend the defective or outdated rule; On the contrary, American judges prefer judicial amending if only they think there are leaks in legal rule. There are many differences in statutory status and interpretation between England and U.S.A. By the Britain Constitution the Britain Parliament is supreme in the sense that its statutes, whatever their content, are not subject to review by courts. So Britain statutes have got strong force; But according to the American Constitution, the Super Court was entitled to judicial review. It means if statutes passed by the American Congress, which are found to conflict with the Constitution by the Super Court, they have no force. So whether American statutes have got force or not finally is decided by judges in someextent. Studying the statutes of England, we observe that words of Britain statutory provisions are so detailed and prolix that Britain judges are limited in the statutes and have no chance to exercise judicial discretion; Relatively speaking, the words of American statutes are so general and indistinct that American judges hold abundant discretion. Among statutory interpretation, consisting of interpretation on contract and will, Britain judges incline to interpret strictly on the literal meanings of the statutes and make no decision by their own attitudes; American judges incline to interpret on legislative intention, moral standard, social trend, policy considering, etc. They exercise judicial discretion in order to get a suitable judgment.The author also demonstrates the reasons for the difference in judicial style between the two countries, which include two parts: judicial system and legal theory. Finally it should be pointed out that the difference in judicial style between England and U.S.A is regular, and tendentious too.
Keywords/Search Tags:Discretion
PDF Full Text Request
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