The Use of Discretion and Reasons of Judges through the Lens of Legal Philosophy of H.L.A. Hart

Abstract

“Court is the last resort of people” is the statement about the power to try and adjudicate cases in which judges have to have the discretion to try and adjudicate cases when controversies have arisen, and a sentence is needed for justice. According to the legal state and Separation of Powers, judges have the judicial power. Legislatures have the legislative power. Executives are responsible for inspecting and controlling the state power for people’s rights and freedom protection. H. L. A. Hart stated the discretion in complicated cases in which primary law and subordinate legislation could not be applied. Judges could have the power to try and adjudicate cases without those laws to reduce the gap in law enforcement. However, discretion without laws may result in the power of law adjustment which overthrows the legislative power and goes against the Separation of Powers which is an important principle of the legal state. Therefore, to protect against the abovementioned abuse of power. The judges should try and adjudicate cases under the laws. In complicated cases in which written law cannot be applied, the judges could try and adjudicate cases without those laws but still be under the general principles of law. It is the responsibility of the judges to search for it. Let the legislatures be responsible for law adjustment. Let the executives be responsible for the adjustment of the penalties. Those follow the principles of Executive Clemency and Truepenny Judge’s comments in the Case of Speluncean Explorers.