Discretion and Dispositive Concepts

In this paper, I will argue against a way of approaching the issue of Judicial discretion that finds its clearest exposition and highest development in recent works by Ronald Dworkin. I will argue that this approach is too narrow, and that it ignores a kind of Judicial discretion whose existence has been maintained by Jurists with discretionist sympathies, and which is philosophically significant. The kind of discretion it ignores raises the issue of the Justification of adjudication as clearly as does the kind of discretion that it recognizes. Moreover, discussion of the kind of discretion ignored is in some respects the natural starting place for a discussion of Judicial discretion in general.