Strict Rules and Discretion: A Comparative Study of differences and their causes

Author: Cui Linlin
Publisher:
Publishing Time: Not Available
Features: The contradiction between strict rules and discretion is an inherent conflict in the judicial process. In the full establishment of legalism, the comprehensive adherence to strict 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 studies of their judicial processes, this book argues that judges in the UK and the US exhibit markedly different tendencies when facing this contradiction: British judges tend to adhere strictly to the 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 factors such as legislative intent, moral principles, social orientation, policy considerations, and changes in circumstances all serving as grounds 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 representative countries of the common law system, the inheritance relationship between British and American law, as well as the numerous similarities arising from it, seem to attract more attention. 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 markedly different tendencies 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 the legal cultural traditional models of the UK and the US.