Between Strict Rules and Discretion: A Comparative Study of Differences in Causes

Author: Cui Linlin
Publisher:
Publish Date: 2005-03-01
Features: The contradiction between strict rules and discretion is an inherent conflict in the judicial process. In the full establishment of legalism, the strict adherence to rules is the theme of justice. However, when inherent rules have obvious defects or are completely missing in individual cases, can judges deviate from these rules, or to what extent can they exercise discretion to achieve the "justice" value of the law? Through technical analysis of relevant cases in the UK and the US, as well as comparative research on their judicial processes, this book argues that judges in the UK and the US exhibit significantly different tendencies when facing this contradiction: British judges tend to adhere strictly to rules to maintain the authority of the law, even if it may lead to unfair or even absurd judgment results; American judges, on the other hand, tend to exercise flexible discretion, with legislative intent, moral principles, social orientation, policy considerations, and changes in circumstances all serving as bases for judgment. As a result, the British legal system demonstrates relatively prominent formality, uniformity, and stability, with its legal evolution characterized by an incremental model. The American legal system, in contrast, exhibits strong adaptability and flexibility, with a dynamic development model. As two major representatives of the common law system, the inheritance relationship between British and American law, as well as the numerous similarities arising from it, seem more noteworthy. Even when comparing the differences between British and American law, the focus often remains on relatively specific institutional levels, while the overall differences in legal cultural models between the two countries are frequently overlooked. This book makes a positive and valuable exploration in this regard, arguing that the significant differences exhibited by judges in the UK and the US in the judicial process are not only tendencies but also patterns, with their background and foundation rooted in the differences in legal cultural traditional models between the two countries.