He further observes that “this objection is based on an erroneous conception of the essential nature of the administration of justice.
The administration of justice may be defined as the maintenance of right or justice within a political community by means of the physical force of the State and through the instrumentality of the Suite’s judicial tribunals. Law is secondary and unessential.
It consists of the authoritative rules which apply in the administration of justice to the exclusion of their own fact will and discretion. For good and sufficient reasons the courts which administer justice are constrained to walk in predetermined paths. They are not at liberty to do that which seems right and just in their own eyes.
They are bound hand and foot in the bonds of an authoritative creed which they must accept and act without demur. This creed of the courts of justice constitutes the law; and so far as it extends, it excludes all rights of private judgment.
The law is the wisdom and justice of the organized commonwealth formulated for the authoritative direction of those to whom the commonwealth has delegated its judicial functions. What a litigant obtains in the tribunals of a modern and civilized State is doubtless justice according to law, but it is essentially and primarily justice and not law.
Judges are appointed in the words of the judicial oath “to do right to all manner of people, after the laws and usages of this realm.” Justice is the end; law is merely the instrument and the means.
“Administration of justice is perfectly possible without fixed rules at all. Howsoever expedient it may be, howsoever usual it may be, it is not necessary that the courts of the State should, in maintaining right and redressing wrong, act according to those fixed and predetermined principles which are called the law.
A tribunal in which right is done to all manner of people in such fashion as commends itself to the unfettered discretion of the judge, in which equity and good conscience and natural justice are excluded by no rigid and artificial rules, in which the judge does that which he deems just in the particular case, regardless of general principles, may not be an efficient or trustworthy tribunal, but is a perfectly possible one. It is a court of justice, which is not also a court of law.
“Moreover even when a system of law exists, the extent of it may vary indefinitely. The degree in which the free discretion of a judge in doing right is excluded by predetermined rules of law is capable of indefinite increase or diminution.
The total exclusion of judicial discretion by legal principle is impossible in any system.” (Salmond on Jurisprudence, 8th Edition, pp. 39-41).
Merely because the courts decide according to law we cannot assume that they exercise no discretion or are not concerned with broad issues of policy. (Sorrel v. Smith 1925 A.C. 700). A decision whether a particular contract is against public policy involves (if there is no authority) an analysis of the interest at stake.
If a petitioner in an undefended divorce suit confesses that he has been guilty of adultery and asks the court to exercise its discretion in his favour and to grant a divorce because of his wife’s misconduct, are we not coming very close to the administrative process?
The discretion of the court must be exercised in accordance with such rules of law as exist, but that is also true of the administrator. (Paton on Jurisprudence, p. 226). Of course, as an accumulation of such cases is dealt with by the courts, precedents are established which sometimes crystallize the broad lines of policy by laying down detailed rules of law.
But in some of these cases, the courts explicitly refuse to fetter their discretion. An administrator does not create binding precedents by following a certain line of policy, although, there is a natural tendency to develop a consistent practice. (W.A. Kobson op. cit., p. 294).
Now ii is clear that the total exclusion of judicial discretion by legal principle is impossible in any system. There is always some residuum of justice, observes Salmond, which is not according to law some activities in respect of which the administration of justice cannot be defined or regarded as the conforcement of the law.
Till the year 1875, i.e., before the passing of Judicature Act, the Court of Chancery administered justice even against the express provisions of the common law.
It gave relief where the common law was silent or failed to provide adequate relief in cases where the common law court recognised the right.
The Chancery Court also aided a party in matters of procedure. The result was that in those days the Chancery Courts wielded great discretionary powers and supplied the deficiencies of the common law.
“Laws are in theory,” as Hooker says, “the voices of right reason, they are in theory the utterances of justice speaking to men by the mouth of the State; but look often in reality they fall far short of this ideal.” However, legal rules may be amplified and elaborated; there is always great scope for the exercise of judicial discretion. Since laws are general rules they cannot make express provisions for all contingencies or against all the inconveniences. In this state of affairs some degree of discretion must always exist.