Historical and Legal Characteristic of the Judges’ Status and Judicial Discretion in Modern Times

Abstract

The principal objective of public authorities in the modern states ruled by law is to protect the rights, freedoms and legitimate interests of the individual and citizen. That is why, with the help of national legislation, the state is trying to create an appropriate judicial system that would facilitate the accomplishment of this task. The judicial system of any state is formed not only on the basis of modern legislative regulations but also relying on the historical background knowledge accumulated over the centuries. The goal of this research is to provide a well-grounded historical and legal description of the issue of judicial discretion and thus create a basis for recommendations that may be important for further improvement of law enforcement. To achieve this goal, the study focused on revealing the factors that influenced the judiciary and peculiarities of the adjudication in European countries of Modern Times. Conclusions of the study clarify that the development of natural law and the concepts of legal thinking had a significant influence on judicial discretion during the period of Modern Times, Enlightenment, and Renaissance. The period of the XVIII-XIX centuries was characterized by the strengthening of the role of positivism on the background of the rapid development of capitalist relations, mass discoveries in science and technology, which contributed to the rational explanation of natural law. At the same time, the priority was ethical postulates, moral laws and imperatives, which complemented the positive law, which denied its inability to regulate social relations. The proclamation of legal positivism as the fundamental current of the nineteenth century led to the recognition of the law as the only one source of law. The concept of positivism insisted on limiting judicial review be the law, so natural law was not almost applied by judje.