Discretion in the Career and Recognition

Abstract

The author compares the career judiciary that is common in legal systems based on the continental European model with the recognition judiciary of some common law countries. This comparison of the incentives judges face and of the features that the selection process rewards in judicial candidates, shows the career judiciary tends to narrowly apply the law while the recognition judiciary tends to perceive interpretive latitude and exercise judicial discretion. The conclusion suggests introducing features of the recognition judiciary into career judiciary systems together with institutional features that will prevent discretion divorced from social preferences, mores, and needs.