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Sun 7 Feb, 2010 04:55 pm
Can a judge use discretion in their rulings regarding principles. That is, can a judge decide whether or not to apply principles? For example, take the principle that people should not profit from their illegal actions. Is the judge bound by this principle? Must he/she take this into account in deciding cases? Or can the judge use his/her discretion regardless of anyone's approval?
It seems that a judge can use discretion because principles can be controversial. For example, a person kills his family member because he knows that there is money for him in his family member's will. In this case, must the judge look back at other rulings to decide if the person is able to keep the money?
Furthermore, if we apply this same principe (that people may not profit from illegal actions) to the person who violates her probation by crossing state lines, and in the event gambles her own money and wins big, must the judge look to this principle in deciding whether she should be able to keep the money?
The controversiality is whether this one principle is binding in all cases. Is it fine to say that the judge has discretion that is not backed by authority in cases where there is not a clear law? Of course the judge is bound by law, but are they bound by principles too?
@Brandi phil,
Principles are unspecifyed rules, and laws is specifyed principles and rules.
You must not kill = principle
Killing in selfdefense is legal under certain circumstances, or willful killing such as in war is contradicting the stated principe.
Therefore a judge can never judge from basis of a principles, only by law.
@Brandi phil,
But "you must not kill" is not a principle; it is law. There are laws that say it is permissible to kill in self defense and war etc. I understand your reasoning, but not your definition of "principle."
@Brandi phil,
Laws are arbitrary, sometimes they are in line with overriding moral principles, sometimes they are not. If anything principles of justice and morality are more binding than laws, because one is not obligated to follow an unjust law.
@HexHammer,
HexHammer;140954 wrote:It is also a law.
Therefore, judges are bound.
@Brandi phil,
Brandi;140957 wrote:Therefore, judges are bound.
Think you mix it up in a very bad way.
@HexHammer,
HexHammer;140958 wrote:Think you mix it up in a very bad way.
I think maybe you misunderstood the question.
@Brandi phil,
Brandi;125889 wrote:Can a judge use discretion in their rulings regarding principles. That is, can a judge decide whether or not to apply principles? For example, take the principle that people should not profit from their illegal actions. Is the judge bound by this principle? Must he/she take this into account in deciding cases? Or can the judge use his/her discretion regardless of anyone's approval?
It seems that a judge can use discretion because principles can be controversial. For example, a person kills his family member because he knows that there is money for him in his family member's will. In this case, must the judge look back at other rulings to decide if the person is able to keep the money?
Furthermore, if we apply this same principe (that people may not profit from illegal actions) to the person who violates her probation by crossing state lines, and in the event gambles her own money and wins big, must the judge look to this principle in deciding whether she should be able to keep the money?
The controversiality is whether this one principle is binding in all cases. Is it fine to say that the judge has discretion that is not backed by authority in cases where there is not a clear law? Of course the judge is bound by law, but are they bound by principles too?
A judge may inforce law not make it. a supream court judge gets to define laws but can not make a new one uncorrelated with a already existing law. corporate law would be a good example of this. by principal fraud/theft is bad but its only illegal if you cant find a loophole. If you dont violate a specific law then what you are doing is legal but could violate many principals at once. If America had Napoleonic law as in it must be a law that you can do something for it to be legal the judge would have some wiggle room but in America everything is legal unless there is a law saying it is not.
@Brandi phil,
Brandi;141110 wrote:I think maybe you misunderstood the question.
I belive I understoodit perfectly.
@Brandi phil,
Brandi;125889 wrote:Can a judge use discretion in their rulings regarding principles. That is, can a judge decide whether or not to apply principles? For example, take the principle that people should not profit from their illegal actions. Is the judge bound by this principle? Must he/she take this into account in deciding cases? Or can the judge use his/her discretion regardless of anyone's approval?
It seems that a judge can use discretion because principles can be controversial. For example, a person kills his family member because he knows that there is money for him in his family member's will. In this case, must the judge look back at other rulings to decide if the person is able to keep the money?
Furthermore, if we apply this same principe (that people may not profit from illegal actions) to the person who violates her probation by crossing state lines, and in the event gambles her own money and wins big, must the judge look to this principle in deciding whether she should be able to keep the money?
The controversiality is whether this one principle is binding in all cases. Is it fine to say that the judge has discretion that is not backed by authority in cases where there is not a clear law? Of course the judge is bound by law, but are they bound by principles too?
What you seem to be asking is a legal question, not a philosophy of law question. As such, it should be directed to a lawyer who specializes in the relevant area of law.
I believe, however, that there are laws regarding the principle that you state: "people should not profit from their illegal actions." And judges will generally apply laws regarding that principle if relevant to the case.
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