Proceedings of the International Conference On Law, Economic & Good Governance (IC-LAW 2023)

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Understanding Judicial Discretion: A Comparative Study of judge’s legal reasoning in Civil Law and Common Law Jurisdictions

Authors
M. Ilham Tanzilulloh1, *, Hartiwiningsih Hartiwiningsih1, Muhammad Rustamaji1
1Faculty of Law, Universitas Sebelas Maret, Jawa Tengah, Jl. Ir. Sutami No. 36, Kec. Jebres, Kota Surakarta, Jawa Tengah, 57126, Indonesia
*Corresponding author. Email: milhamtanzilulloh@student.uns.ac.id
Corresponding Author
M. Ilham Tanzilulloh
Available Online 22 February 2024.
DOI
10.2991/978-2-38476-218-7_92How to use a DOI?
Keywords
judicial discretion; legal reasoning; civil law; common law
Abstract

This article examines the concept of judicial discretion within the two primary legal systems: Civil Law and Common Law. Judicial discretion is often perceived as the freedom granted to judges in decision-making, impacting the integrity and consistency of judicial rulings. Consequently, this study endeavors to bridge this gap by exploring how judicial discretion and judges’ legal reasoning function in these dual legal systems. Employing a comparative qualitative method, this research includes data analysis from both legal frameworks. The result indicates that civil and common law judges possess similar levels of discretion. Although in common law, precedents bolster judicial discretion, it does not necessarily influence judicial decisions. This situation is particularly evident in the current climate, where judges face pressures to consider social and cultural norms, especially in an era of globalization and legal reform. This study contributes to understanding how judicial discretion operates across various legal traditions and its effect on justice enforcement.

Copyright
© 2024 The Author(s)
Open Access
Open Access This chapter is licensed under the terms of the Creative Commons Attribution-NonCommercial 4.0 International License (http://creativecommons.org/licenses/by-nc/4.0/), which permits any noncommercial use, sharing, adaptation, distribution and reproduction in any medium or format, as long as you give appropriate credit to the original author(s) and the source, provide a link to the Creative Commons license and indicate if changes were made.

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Volume Title
Proceedings of the International Conference On Law, Economic & Good Governance (IC-LAW 2023)
Series
Advances in Social Science, Education and Humanities Research
Publication Date
22 February 2024
ISBN
978-2-38476-218-7
ISSN
2352-5398
DOI
10.2991/978-2-38476-218-7_92How to use a DOI?
Copyright
© 2024 The Author(s)
Open Access
Open Access This chapter is licensed under the terms of the Creative Commons Attribution-NonCommercial 4.0 International License (http://creativecommons.org/licenses/by-nc/4.0/), which permits any noncommercial use, sharing, adaptation, distribution and reproduction in any medium or format, as long as you give appropriate credit to the original author(s) and the source, provide a link to the Creative Commons license and indicate if changes were made.

Cite this article

risenwbib
TY  - CONF
AU  - M. Ilham Tanzilulloh
AU  - Hartiwiningsih Hartiwiningsih
AU  - Muhammad Rustamaji
PY  - 2024
DA  - 2024/02/22
TI  - Understanding Judicial Discretion: A Comparative Study of judge’s legal reasoning in Civil Law and Common Law Jurisdictions
BT  - Proceedings of the International Conference On Law, Economic & Good Governance (IC-LAW 2023)
PB  - Atlantis Press
SP  - 551
EP  - 556
SN  - 2352-5398
UR  - https://doi.org/10.2991/978-2-38476-218-7_92
DO  - 10.2991/978-2-38476-218-7_92
ID  - Tanzilulloh2024
ER  -