I.

Questions about discretion that legal philosophers deal with

What is discretion, what is the exercise of it?
Under what conditions and why do we accept and tolerate discretion in a legal system
Do we have to accept it? Why>
What values does discretion uphold and not uphold
How can we make a system of discretion do the most good and the least evil?
Not important what the psychology behind discretion is
II.
Discretion is defined because people discuss it
There are standard characteristics found in discretion
In some cases, all apply, in other cases very few may apply
Many problems with discretion deal with clear cut cases anyway because they produce
widespread problems
We should focus on clear cut cases and try to find characteristics that spread across them,
rather than merely define
III.
Discretion is basically everything, any time someone makes a choice in a legal system
There is Express or avowed use of discretion
By administrative bodies and by courts
There is tacit or concealed discretion
Interpretation of statutues, use of precedent
There is discretionary interference or dispensation from acknowledged rules
A reprieve or pardon, injuction against exercise of common law remedies
Two divisions of discretion:
Discretion can help produce more good or interfere with rights to prevent harm
Discretion is either used where it is recognized that regulations are created through discretion
or where specific rules are debated in unclear cases
IV.
Discretion exists outside the law
Discretion does not equal choice
Discretion is a near-synonym for practical wisdom, power of discerning
If you reference a choice to a general principle justifying it and that principle is sound, you are
exercising discretion
Choice can be the expression of personal whim, discretion can not
Voting for a candidate just because you like him is choosing, but not discretion
Sometimes you can choose even though the choice is obvious, and that isnt exercising
discretion
What should I eat this cup this fork or this apple?
Should I stand for the star spangled banner?
Only discretion if you weighed your choice to stand against other options
V.
Dinner party
Young hostess uses discretion in deciding what glasses to use
 No right or wrong choice, no clearly defined aim though there are determinate things
within the unclear aim, the outcome is unclear, there are determinate values but no
clear rules or principles surrounding them within the unclear aim, the decision wont be
sharply defined as right or wrong, she can defend her decision through justification and
vindication
VI.
The factors and language used in the dinner party example crop up in legal proceedings
No right or wrong, speculative factors, trying to find a decision that reasonable men
would have made, undefined senses of what is proper, no complled result but a need
for judgment
there remains a choice to be made by the person to whom the discretion is authorized which
is not determined by principles which may be formulated beforehand, although the factors
which we must take into account and conscientiously weigh may themselves be identifiable.
VII.
Why do we accept discretion
We are men not gods
Limited by relative ignorance of fact and relative indeterminacy of aim
In avowed discretion the limitation is so great that we do not try to make
any specific rules but immediately differ discretion to authority
In tacit discretion we set out specific rules but some cases arise where
the rules break down and there is no unique answer in a given case
Relative ignorance of fact
Vehicles in the park
Relative indeterminacy of aim
In borderline cases our aim becomes unclear
Do we want so much safety in the park that you cant ride a skateboard?
We must test our aims against real experiences
VIII.
Discretion is necessary when the anticipatable combinations of relevant fact are relatively few
and bring with them a relative indeterminacy of our aim
Rate fixing
Since discretion is inevitable, we must identify the optimum conditions for discretion
IX.
Optimum conditions vary