Legal Theory Essay 127 Harv. L. Rev. 652



In this field questions arise which are certainly difficult; but as I listened last time to members of the group, I felt that the main difficulty perhaps lay in determining precisely what questions we are trying to answer. I have the conviction that if we could only say clearly what the questions are, the answers to them might not appear so elusive. So I have begun with a simple list of questions about discretion which in one form or another were, as it seemed to me, expressed by the group last time. I may indeed have omitted something and inserted something useless: if so, no doubt I shall be informed of this later.

The central questions then seem to me to be the following:

  1. What is discretion, or what is the exercise of discretion?
  2. Under what conditions and why do we in fact accept or tolerate discretion in a legal Ӭsystem?
  3. Must we accept discretion or tolerate discretion, and if so, why?
  4. What values does the use of discretion menace, and what values does it maintain or Ӭpromote?
  5. What can be done to maximize the beneficial operation of the use of discretion and to Ӭminimize any harm that it does?

From this list I am certainly conscious of omitting some specific questions [from] last time.

For example, I have not included the psychological question raised by Professor Freund: what are the psychological conditions of a sound use of discretion? I have omitted this because I believe that if we clearly understand what it is to exercise a discretion and what in different fields counts as the satisfactory exercise of a discretion, we shall not really have to face an independent psychological question of the form: what are the psychological conditions of its sound exercise or how are we psychologically able to exercise a discretion? Indeed, I think this question, which looks on the surface to be one of empirical psychology, perhaps really expresses in a rather misleading form just our initial unclarity about what discretion is and what in various fields we count as a sound exercise of discretion. But only further exploration of our subject will show whether I am right in this, and I may very well not be right.