Question

As a rule, the judges can and do make different decisions in cases before them by distinguishing previous cases that might have applied before’. Which law tradition does NOT belong to this principle mainly?

Answer 1

Answer:

For long it has been the received opinion that judges filled in the gaps left by rules by using their discretion. Positivistic jurisprudence from Austin to Hart placed strong emphasis on the part played by judges in the exercise of their discretion. "In these cases it is clear", Hart has said, "that the rule-making authority must exercise discretion, and there is no possibility of treating the question raised by the various cases as if there were one uniquely correct answer to be found, as distinct from an answer which is a reasonable compromise between many conflicting interests". A competing view was espoused by the realists who placed absolute emphasis on the discretion of judges and relegated the "rules" to an obscure position. Earlier, little attention was paid to the analysis of discretion. However, a determined effort has been made lately by Ronald Dworkin, who has cast serious doubts on the orthodox opinion and has emerged as the principal opponent of Hart. Dworkin's views have posed a sustained challenge to the positivist account and have received critical acclaim by leading jurists of the world.