| Summary: | 碩士 === 國立臺灣大學 === 法律學研究所 === 104 === Discretion is an important topic in jurisprudence. When law is not clear, it seems that law leaves some space where decision-makers have freedom to choose. Discretion is regarded as an individual factor in rule of law: it may realize equality, justice or fair, but it may be abused to threaten our democracy. Thus we can say that judicial discretion is not only an intersection of “rule of law” and“rule by man”but also relates to“concept of law” and “axiology of law”. As a result of this special character, discretion becomes a controversial issue of legal theory for a long time.
However, there are some ambiguity in the concept of discretion. The precise meaning of discretion is affected by features of the context. The word “judicial discretion”in the title of this essay “Is Judicial Discretion Inevitable?”means that there are more than one answer in a legal case when judges have difficulty in applying the law.In this sense, this essay concerns whether judicial discretion is inevitable. Moreover, “what is law” may affect “what is discretion”. Therefore,it directs its attention to the relation of law and discretion from view of legal philosophy.This essay will start from Hart-Dworkin debate on the concept of law and judicial discretion to explore the meaning of judicial discretion and its related issue.
This essay includes three parts: legal theory, statistic of judgments, and case study. In chapter two,it introduces Hart-Dworkin debate on concept of law and judicial discretion. In chapter three, it deeply discusses problems of interpretation, discretion, and value-free from the perspective of Dworkin’s legal and political philosophy. In chapter four, it explores the concept of judicial discretion in Taiwan’s court by searching judgments of Supreme Court. In chapter five, it analyzes and criticizes Governor Special Allowances Case and Election of the Political Party Proportional Representatives Case(Judicial Yuan Interpretation No.721).
Judicial discretion is a claim based on value-free legal theory, but I argue that law is an interpretive concept and cannot be understood out of value. It is concluded that judicial discretion is not inevitable. If judge’s decision can be drawn from constructive interpretation that both fits and justifies the political structure and legal doctrine of community in some coherent set of principles about people’s rights and duties, in this way,it will be a more rigorous attitude and more compatible with democracy and separation of power than we admit judicial discretion that lets the judge choose freely.
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