In Judicial Discretion, jurist Aharon Barak wrote:
"Judicial discretion ... is ... a legal condition in which the judge has the freedom to choose among a number of options.
"Where judicial discretion exists, it is as though the law were saying: I have determined the contents of the legal norm up to this point. From here on, it is you, the judge, to determine the contents of the legal norm for I, the legal system, am not able to tell you which solution to choose.
"It is as though the path of the law came to a junction, and the judge must decide - with no clear and precise standard to guide him - which road to take."
Albeit rarely, the term does occur in statute such as §5 of the Family Law Act of Newfoundland which provides that as concerns matrimonial property cases before them, judges are to use their:
"... judicial discretion in sharing business assets built up by a spouse during a marriage."
Indeed, judicial discretion is prevalent in family law so as to allow the judges of the court flexibility in determining in arriving at the most just result in cases involving child custody, spousal support and a division of alleged family assets.
REFERENCES:
- Barak, A., Judicial Discretion (New Haven: Yale University Press, 1987), page 8.
- Family Law Act, Revised Statutes of Newfoundland and Labrador 1990, Chapter F-2.