The Weak Discretion Model

Abstract

Weak discretion was introduced in Chapter 1 as one of the possible uses of ‘judicial discretion’. It was broadly defined as the need for reasonableness and good judgement in identifying the course of action prescribed by the law when there exists a right legal answer. The different approaches to weak discretion arise in connection with what the nature of the link between right answer and the epistemic abilities of interpreters is taken to be: if the right legal answer is assumed independent of interpreters’ considerations, difficulties in identifying it lead to a need for weak discretion; by contrast, if the right legal answer is considered to be dependent on the epistemic abilities of the interpreting agents, weak discretion merely embodies the implementation of a particular theory or conception of law. Before embarking on a full analysis of what I will call ‘the weak discretion model’, I would like to stress that these are the two approaches underlying the debate on the existence and the extent of weak discretion in legal adjudication.