Abstract

ETCHEVERRY, Juan Bautista. Rule of Law and judicial discretion: Compatibility and reciprocal limitation. Rev. Derecho Estado [online]. 2017, n.38, pp.3-21. ISSN 0122-9893.  https://doi.org/10.18601/01229893.n38.01.

The aim of this work is to throw some light upon the compatibility between the rule of law desiderata and the phenomenon of judicial discretion. In order to achieve this, it is first necessary to determine what we understand by the terms "rule of law" and "judicial discretion". In this sense, the conception of judicial discretion that is offered in this work is linked with a certain margin of freedom that judges have when deciding cases that have at least two justified possible courses of action. In addition to this, this work puts forward a notion of the rule of law desiderata and characterizes the latter as ideals that: (i) aim at serving valuable ends, (ii) admit degrees of accomplishment, as it is impossible -and, in some cases, even undesirable- to fulfill them either completely or to the highest possible degree. Based on these notions, this work intends to demonstrate that if the rule of law desiderata are understood as requirements that are not always meant to be accomplished completely, and that even in some cases should not be fulfilled to their highest possible degree, then they can be compatible with the phenomenon of judicial discretion.

Keywords : Rule of law; judicial discretion; legal indeterminacy; right answers thesis; judicial decision.

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