Judicial discretion, though freedom-like, remains disciplined by tradition, analogy, and system.
Evidence
“Here, indeed, is the point of contact between the legislator’s work and [the judge’s]. The choice of methods, the appraisement of values, must in the end be guided by like considerations for the one as for the other… . [Y]et the judge, even when he is free, is still not wholly free… . He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to ‘the primordial necessity of order in social life.’” — G. Alan Tarr, Judicial Process and Judicial…, 1295
Categorization
- XREF: Directly echoes ch1’s ‘judicial discretion is channeled by constraints, not eliminated’ — the same claim in Cardozo’s canonical phrasing. — connects to: Judicial decisions result from attitudes, role conceptions, and institutional constraints interacting together. — G. Alan Tarr, Judicial Process and Judicial…, 1286; Judicial discretion is channeled by constraints, not eliminated. — G. Alan Tarr, Judicial Process and Judicial…, 188; Judicial discretion is constrained but never wholly eliminated. — G. Alan Tarr, Judicial Process and Judicial…, 198 (+5 more)
- DEFINE: Defines the bounded-discretion view of judging that the chapter contrasts with pure attitudinalism.
Broader Connections
- Judicial discretion is constrained but never wholly eliminated.
#expands(0.90) — G. Alan Tarr, Judicial Process and Judicial…, 198 - Restraint by fair law is compatible with freedom, unlike arbitrary sway
#corroborates(0.85) — Philip Pettit, Republicanism, 66 - Respect for precedent keeps courts from reversing failed policies.
#exemplifies(0.75) — G. Alan Tarr, Judicial Process and Judicial…, 1482 - Genuine authority and freedom are mutually dependent, not opposed
#corroborates(0.72) — Paulo Freire, Pedagogy of the Oppressed, 572 - Fixed legal rules beat discretionary state power even when imperfect
#qualifies(0.72) — Philip Mirowski & Dieter Plehwe (eds.), The Road from Mont Pèlerin, 135 - Traditional doctrinal explanations may genuinely explain many judicial decisions.
#corroborates(0.72) — Frederick Schauer, Thinking Like a Lawyer, 259