Judicial Discretion and Jurisprudence

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Moral questions impact the law at every corner. A rigid separation between morality, law, and discretion is implausible and, as Wacks defines it, “an improbable enterprise.”[1] In theory and in practice, the judiciary functions as the crux of the common law in Hong Kong. It is therefore in judicial discretion that the perception of law is segregated into two main schools of thought: legal naturalism and positivism. The naturalistic claim that the very essence of law is its morality is contrasted by the positivistic allegation of a moral-free code of law. This essay explores judicial discretion in Hong Kong under each discipline and argues that the naturalistic approach is more coherent and justifiable under three accounts: constitutional checks, constructive interpretation, and moral accountability. In pursuit of a thorough analysis, the definitions of law, morality, and discretion must first be interpreted. I emphasize the term ‘interpretation’ to give light to the complexity in sufficiently defining said terms. Law, as H.L.A. Hart – the most prominent modern positivist in the twentieth century[2] – declares, is “a system of… social rules that direct and appraise behavior.”[3] In my words, law is defined as the social phenomenon that establishes guidelines and restrictions for human behavior. The term “morality” refers to “a code of conduct, given specified conditions, would be put forward by all rational persons.”[4] As per my opinion then, morality is an unwritten and objective code of conduct that the community generally abides to. Lastly, Westen states that “discretion means… an area within which the discretion-holder has authority to adopt, or not to adopt, whatever rule he deems fit.”[5] Discretion, in this sense, describes the power of an authority to exercise his/her decision in accordance to rules and laws. It is noted that these definitions are, at best, elementary to the intricacies underlying the colossal concepts of law, morality, and discretion; thus, to narrow the scope, I approach these concepts with a focus within the Hong Kong jurisdiction. The lineage of debates between naturalism and positivism in jurisprudence have extended over centuries. Essentially, naturalism provides that the “act of positing law… can and should be guided by ‘moral’ principles and rules; that those moral norms are a matter of objective reasonableness, not of whim, convention, or mere ‘decision’.”[6] The judicial process, under a naturalistic approach, present the judges with the duty to ensure moral foundations are met. Dworkin calls it “law as integrity”: It supposes that law’s constraints benefit society not just by providing predictability or procedural fairness, or in some other instrumental way, but by securing a kind of equality among citizens that makes their community more genuine and improve its moral justification for exercising the political power it does.[7] The modern advocacy of positivism, however, denies moral considerations in exercising discretion; as Hart declares: The rule-making authority must exercise a 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 conflicting interests.[8] Thus,

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