Judicial discretion is the power of the judiciary

Judiciary

The judiciary is the system of courts that interprets and applies the law in the name of the state. The judiciary also provides a mechanism for the resolution of disputes...

 to make some legal decisions according to their discretion

Discretion

Discretion is a noun in the English language with several meanings revolving around the judgment of the person exercising the characteristic.-Meanings:*"The Art of suiting action to particular circumstances"...

. Under the doctrine of the separation of powers

Separation of powers

The separation of powers, often imprecisely used interchangeably with the trias politica principle, is a model for the governance of a state. The model was first developed in ancient Greece and came into widespread use by the Roman Republic as part of the unmodified Constitution of the Roman Republic...

, the ability of judge

Judge

A judge is a person who presides over court proceedings, either alone or as part of a panel of judges. The powers, functions, method of appointment, discipline, and training of judges vary widely across different jurisdictions. The judge is supposed to conduct the trial impartially and in an open...

s to exercise discretion is an aspect of judicial independence

Judicial independence

Judicial Independence is the idea that the judiciary needs to be kept away from the other branches of government...

. Where appropriate, judicial discretion allows a judge to decide a legal case or matter within a range of possible decisions.

However, where the exercise of discretion goes beyond constraints set down by legislation

Legislation

Legislation is law which has been promulgated by a legislature or other governing body, or the process of making it...

, by binding precedent

Binding precedent

In law, a binding precedent is a precedent which must be followed by all lower courts under common law legal systems. In English law it is usually created by the decision of a higher court, such as the Supreme Court of the United Kingdom, which took over the judicial functions of the House of...

, or by a constitution

Constitution

A constitution is a set of fundamental principles or established precedents according to which a state or other organization is governed. These rules together make up, i.e. constitute, what the entity is...

, the court may be abusing its discretion and undermining the rule of law

Rule of law

The rule of law, sometimes called supremacy of law, is a legal maxim that says that governmental decisions should be made by applying known principles or laws with minimal discretion in their application...

. In that case, the decision of the court may be ultra vires

Ultra vires

Ultra vires is a Latin phrase meaning literally "beyond the powers", although its standard legal translation and substitute is "beyond power". If an act requires legal authority and it is done with such authority, it is...

, and may sometimes be characterized as judicial activism

Judicial activism

Judicial activism describes judicial ruling suspected of being based on personal or political considerations rather than on existing law. It is sometimes used as an antonym of judicial restraint. The definition of judicial activism, and which specific decisions are activist, is a controversial...

.

Chief Justice John Marshall

John Marshall

John Marshall was the Chief Justice of the United States whose court opinions helped lay the basis for American constitutional law and made the Supreme Court of the United States a coequal branch of government along with the legislative and executive branches...

 wrote the following on this subject:

Judicial power, as contradistinguished from the power of the laws, has no existence. Courts are the mere instruments of the law, and can will nothing. When they are said to exercise a discretion, it is a mere legal discretion, a discretion to be exercised in discerning the course prescribed by law; and, when that is discerned, it is the duty of the court to follow it. Judicial power is never exercised for the purpose of giving effect to the will of the judge, always for the purpose of giving effect to the will of the legislature; or, in other words, to the will of the law.

Concerns with regard to recidivism

Recidivism

Recidivism is the act of a person repeating an undesirable behavior after they have either experienced negative consequences of that behavior, or have been treated or trained to extinguish that behavior...

 and other law and order

Law and order (politics)

In politics, law and order refers to demands for a strict criminal justice system, especially in relation to violent and property crime, through harsher criminal penalties...

 issues have led to the introduction of mandatory sentencing

Mandatory sentencing

A mandatory sentence is a court decision setting where judicial discretion is limited by law. Typically, people convicted of certain crimes must be punished with at least a minimum number of years in prison...

laws which significantly limit judicial discretion in sentencing, particularly in the United States.