DISCRETION OF JUDGE
Freedom of discretion which is granted to judge by means of democratic understanding is one of the basic characteristics of civil law. On the contrary, while the law is being put into practice , it is given particular flexibility to judges. Besides, they are given particular authority and function by the law. Power of law creation which is granted to judge by the civil law is the first freedom. Second freedom is the discretion of judge. This right or authority is different from power of law creation of the judge. Discretionary power is more limited than power of law creation. While the judge uses the discretionary power, He, on his own, does not create a rule. However, the judge has a particular flexibility and an estimation power while the rules are applied to present case. In the issues that law gives right for the discretionary power or the law commands the requirements and right causes of situations kept in mind, the judge makes the decision based on the facts of law and justice. Discretionary power of judge ;It is the authority of estimation and adaptation which is well known by judgement when applied to special and present case that law code’s general and abstract regulation. As it is understood from the definition that , there is the rule to apply to the present case in the law so the judge can use discretionary power. But this rule shows only the general principle with the main outline. With the unknown part in the law code, which is let been on purpose bye lawmaker, it is expected from the judge that he solves the problem by looking at the authority’s and basic principle’s properties. For example, in different articles in the civil code and code of obligation have regulated that persons who cause a damage in particular situations are liable for indemnity. But amount of indemnity is not regulated in these article. In such cases, the judge determines the amount of indemnity by taking the characteristics of present case and the faults of the suspect, if there is, into consideration. The other example of that, it is counted a divorce reason if the conjugal community is jarred fundamentally according to the first paragraph of the 166. article of the Turkish Civil Code, it is not defined that which states are counted as the reason of being jarred fundamentally of the conjugal community . At that case, it is foreseen that these states will be defined by judge on the basis of the discretionary power according to the law.As you can see, the judge has used discretionary power.
However, Discretionary power of the judge is not directed towards to the same thing for every event. This power is sometimes directed towards to the condition and causes of the event and sometimes directed towards to not only the condition and causes of the event but also the result of the event. For example, according to 27. article of Turkish Civil Code, alteration of name can only be wanted from the judge with right causes. In this case, the judge decides that there are fair causes or not for alteration of name by using discretionary power. Here, the discretionary power is directed towards to the conditions of the event.The other example of that, nevertheless, for example, using discretionary power directed towards to the result is acknowledged for the judge by the 170. article of the Turkish Civil code. According to this article, if the divorce suit is sued by married couple, the judge will decide to divorce or separation by using discretionary power.
The Situations Where Discretionary Power Of Judge Is practicable
In the execution of every legal principle , the judge does not have discretionary power. The conditions of application of discretionary power is obvious. For example, 11. article in civil code has clarified that, adolescence begins with the age of 18. This rule is clear and absolute. The judge can not evaluate the adolescence different than it is explained in law by attending to features of present case. So the judge can not determine that a person who is seventeen is adolescence. Consequently, the judge can only use discretionary power in the way expressed in clear terms condition in code. However sometimes, the discretionary power is not mentioned clearly in the law code, but statements and words in the code help us to understand that there is discretionary power of judge or not in the code. Consequently, It is clearly mentioned about using discretionary power of judge in some of the clauses of the Law . For example, it is clearly mentioned that “ the judge should understand fully if such an aim is cherished or not” in the 766.article of the Civil code. It is sometimes not clearly mentioned about using discretionary power of judge in the Law, however the result of having such a power of judge. For example, it is mentioned about “right reasons”(C.C. Law 164. or 67.) and “convenient amount”(C.C. law 121.) or is assumed that the judge has discretionary power in any case of using such statements and words.
The Method Of Usıng Discretionary Power Of Judge
According to US constitutional system, while the judge determines , he should observe original intent of the code and the precedent . However, the judge can use legislative history but it is controversial. Constitution, statues, administrative rules and case law are the resources of the US Civil Code .
The judge cannot use this power arbitrarily and without any limit. The judge should use this power in conformity with law and justice. Judge’s attitude should be proper to law and justice. So, while the judge uses discretionary power , he should get rid of his personal feelings and thoughts. However the judge should be unbiased and objective while he judges. Merely with this way, the judge can attain to result which is proper to purpose of law. However this result shouldn’t be adverse to thought of justice and value judgement of society. Also this result should be applied to similar case.
Judicial Review In Discretionary Power Of Judge
The way of using discretionary power of judge is wheter right or not is dependent on judicial review . If the judge goes beyond the limits of discretionary power of judge and does not show the reasons of it, he or she would not have used that power in the way it has to be used. Besides, if the judge makes any decision without taking purpose of law into consideration, he would have misused his duty .Consequently, judicial review can be done. For example, According to 171. article of Turkish civil code, the judge can determine legal seperation between married couples for 1-3 years running. The judge can not determine legal seperation for more than three years otherwise the judge exceeds one’s discretionary powers. Another example, according to 175. article of Turkish civil code, if the person is reduced to poverty because of the divorce, the person can want the alimony. The aim of this article is only correction of poverty. While conjugal community is going on, if the judge adjudges the amount of alimony which is nearly same as standard of conjugal community, it means that discretionary power is used as wrong.
Article Authors and Translators: Semra Erden