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Taking Rights less Seriously.
A Structural Analysis of Judicial Discretion
Author(s) -
KLATT MATTHIAS
Publication year - 2007
Publication title -
ratio juris
Language(s) - English
Resource type - Journals
SCImago Journal Rank - 0.344
H-Index - 10
eISSN - 1467-9337
pISSN - 0952-1917
DOI - 10.1111/j.1467-9337.2007.00373.x
Subject(s) - judicial discretion , discretion , argumentation theory , jurisdiction , law , political science , constitutional court , law and economics , sociology , constitution , judicial review , philosophy , epistemology
. This article investigates the concept and the construction of judicial discretion. The strengths and weaknesses of both Dworkin and Hart are analysed, and in view of these, it is argued that a full picture of judicial discretion is between the two extremes. Thus, a moderate theory of judicial discretion is maintained which is based on achievements by Robert Alexy (2002b). The article develops a balancing model of discretion and relates it to the theory of legal argumentation. The limits of discretion and the relation between structural (strong) and epistemic (weak) discretion are addressed in detail, both with illustrations from the jurisdiction of the German Federal Constitutional Court.