Duhaime's Law Dictionary

Judicial Discretion Definition:

The power the law gives the Court or a judge to choose among two or more alternatives, each being lawful.

Related Terms: Question of Discretion, Inherent Jurisdiction

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."

In Sharp v Wakefield, Justice Halsbury wrote:

"Discretion means, when it is said that something is to be done within the discretion of the authorities, that that something is to be done according to the rules of reason and justice, not according to private opinion; according to law and not humour. It has to be not arbitrary, vague and fanciful, but legal and regular. And it must be exercised within the limit, to which an honest man, competent to the discharge of his office, ought to confine himself."

In Rooke's Case, Justice Edward Coke wrote:

"Discretion is a science of understanding, to discern between falsity and truth, between wrong and right, between shadows and substance, between equity and colourable glosses and pretences, and not to do according to their men's will and private affections."

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.

John Fineux (1441-1526), as chief justice of the English Court of King's bench, was wont to say:

"Who-so taketh from a justice the order of his discretion, taketh surely from him more than half his office."1

But, perhaps expounding more on the view held by those who do not sit upon but, rather, appear before the bench, Justice Charles Pratt, aka Lord Camden, who once said:

"The discretion of a judge is said to be the law of tyrants. It is always unknown. It is different in different men. It is casual and depends upon constitution, temper and passion. In the best, it is sometimes caprice. In the worst, it is every vice, folly and passion to which human nature is liable."2

"Judicial discretion", wrote Justice Coleridge, C.J., in his 1886 decision Huxley v. West London Extension Ry. Co., cited with approval by Middleton of the Ontario Court of Appeal in 1993, "is not an arbitrary power but a judicial discretion to be exercised on legal principles, not by chance medley, nor by caprice, nor in temper."3


  • 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
  • Heard, Franklin Fiske, Curiosities of the Law Reporters (Boston: W.S. Bartlett, 1871), page 195 [NOTE 1].
  • NOTE 3: Huxley v. West London Extension Ry. Co. (1886) 17 Q.B.D. 373 (1886). Morrison v. Morrison, 62 O.L.R. 178, [1928] 2 D.L.R. 998 (ONCA)
  • NOTE 2: Quoted in James, Croake, Curiosities of Law and Lawyers (London: Sampson Low, Marston & Company, 1882)
  • Rooke's Case, 5 Rep. 99b (1598)
  • Sharpe v Wakefield, 1891 AC 173

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