The problem of the law making power of judges and the legitimacy and limits of judicial discretion recur throughout the history of legal thinking. It has been addressed from many angles and seen in many perspectives from Aristotle's Nicomachean Ethics to Ronald Dworkin's Law's Empire.
Presently, the legitimacy of public power is more and more frequently questioned and doubted. As long as a substantial proportion of the exercise of public power is entrusted to courts and court-like bodies, there is a need for finding clear and comprehensible limits between the realm of judicial and political decision-making. The role of the judiciary in relation to the legislature has naturally become a subject of strong topical interest and is vividly discussed in many quarters and countries.
This collection of essays on judicial discretion takes off with a jurisprudential introduction, which deals with different understandings of judicial discretion, its sources and links to the objectives of European Integration. This includes an elaboration of the relationships between conceptual understanding, actual practice and normative boundaries of judicial discretion. The second theme focuses on the actual practice of judicial discretion of European courts and deals with interpretation and justification against the vision of creating a coherent European legal order.
Contributors, Preface by the Editor, Introductory Address Stig
Strömholm, The Nature of Judicial Discretion and its Significance for
the Administration of Justice Aharon Barak, Taking the World View of
the European Judge Seriously- some reflections on the role of ideology in
adjudication Ola Wiklund, The Scope for Discretion, Coherence and
Citizenship Joxerramon Bengoetxea, Methods of Interpretation Thijmen
Koopmans, Discretion and Precedent in European Law Alec Stone Sweet and
Margaret McCown, The European Court of Justice and the use of Judicial
Discretion Ami Barav, Rewriting Van Gend & Loos: Towards a Normative
Theory of ECJ Hermeneutics Joseph HH Weiler, Index