PERMISSIBLE DISCRETION

The primary objection to the good faith thesis asserts that the idea of a legal constraint on discretion is conceptually confused. The general objection claims that judges can fulfill their duty to uphold law only when the law determines one correct result in a lawsuit and the judge reaches that result. If this were so, it would follow that judges cannot fulfill their duty to uphold the law when the law is indeterminate. Judicial discretion as currently practiced would be impermissible, and the good faith thesis would be pointless. The objection asserts the determinacy condition, which currently underlies and shapes a large part of the debate over legal indeterminacy, judicial discretion, and the legitimacy of adjudication. In those debates, the determinacy condition generally is taken for granted, not defended.

The next three chapters will advance the permissible discretion thesis, which contradicts the determinacy condition. This thesis holds that judges can fulfill their duty to uphold the law by exercising discretion in good faith. If so, judicial discretion exercised in good faith would be compatible with legitimate adjudication in a constitutional democracy (though other conditions would remain to be satisfied). The next three chapters will argue that the determinacy condition is unsound by considering a range of plausible arguments for it. Rejecting the most plausible arguments cannot prove that the determinacy condition is false because all possible grounds are not thereby eliminated.