It is generally accepted that judges are entitled to exercise discretion where existing law does not provide a precise answer to the issue that arises for determination in any particular case. The question for examination is the exploration of what Oliver Wendell Holmes described as the interstitial spaces between the law. Southern Pacific co. v Jenson (1917) 244.U.S. 205. These gaps are smaller than obvious lacunae (cf The non liquat jurisdiction in international law) and indeed may not at first glance be obvious. The examination is twofold. In the first instance, how do judges identify these interstitial spaces and then having identified them how do they then exploit them.
This will then lead on to an examination of the legitimacy of the exercise. Again this is twofold is the identification of the gap in which to exercise discretion legitimate and then having answered that question, is the exercise of discretion thus enabled, legitimate. The concept of legitimacy is vital as it is only those decisions which are legitimate which can constitute valid law which will then be followed by subsequent judges.
The concept of legitimacy is inextricably bound in with the exercise of discretion. It matters not if a judge creates the space in an entirely legitimate fashion if he does not then exercise his discretion in such a way as to arrive at a valid decision. Discretion is inevitably based on a judges own moral compass and his own views. When the law has no answer a judge must fall back on his or her own resources. The area of study would look at how the exercise of discretion has changed over the time in question and then look to the influences and experiences that are acting on the judiciary during this time frame.
The School of Law Policing and Forensics
The School of Law Policing and Forensics at Staffordshire University are inviting applications for Partial Scholarship PhD projects within our school. This scheme gives you the opportunity to enrol on to a PhD project without having to pay any tuition fees. In exchange for this, you would be expected to provide a maximum of 250 hours of teaching support to the Academic Staff. Please note, that no bursary or any other funding will be provided.
If you have any further questions regarding the scheme, please contact Dr Graham Williams at [email protected]
To apply, in the first instance contact the relevant supervisor with your interested project who will discuss the project with you and advise you on how to apply for the PhD. You will need to contact the supervisor directly before applying for the PhD project.