• Join over 1.2 million students every month
  • Accelerate your learning by 29%
  • Unlimited access from just £6.99 per month

Concept of discretion

Extracts from this document...


Introduction The concept of discretion has been much debated since the 1960's; discretion has been portrayed as a concept opposing rule-governed activity, suggesting the exercise of discretion as objectionable and urgently requiring the control of discretion by the promulgation of rules. The argument K.C Davis in 'Discretionary Justice: a preliminary inquiry' argues for the importance of discretionary action as a significant tool in society as it promotes the individualisation of justice. He especially highlights that no society has existed in which discretion has been absent .Davis, however rejecting 'the extravagant rule of law' doctrine, he makes a case that there is 'too much of it', too much of discretion. Therefore, he suggests 2 main ways in which to restrict unnecessary discretion. Firstly, administrators can assist in the elimination of unnecessary discretion by limiting it within indispensable bounds. This can be achieved by the formation of standards and rules which will make clear vague legislative criteria. The remodelling of agency policy through rule-making is considered to be preferable to development which is carried out through adjudication as it allows more conference and involvement by interested parties. Davis secondly suggests that discretion ought to be controlled in order to make certain that it is structured. This can be achieved through such things like 'open plans, open policy statements and rules, open findings, open reasons, open precedents and fair procedure'. The general aim is therefore not to remove discretion. ...read more.


The verdict of the Court of Appeal maintained that an inflexible policy was disproportionate and contradictory in the theory as it was unsuccessful in providing the individual consideration necessary to fulfil its own key aim, which was protecting the wellbeing and welfare of the child. The judgment of the House of Lords in Daly as well concerned a human rights based challenge to a rigid policy. The policy required prison officers to inspect a prisoner's legal correspondence without the presence of the prisoner. It was held by the court that such a blanket policy is unlawful as it results in a disproportionate interference with the prisoners' rights. It was further concluded that in English law, a public organisation entrusted with statutory discretionary powers is constrained from implementing a policy or a rule which allows it to reject a case without considering the merits of the individual claimant. Following on, Feldman in Discretions, choices and values proposes an interesting argument. He discusses formal constraints which arise as a result of the official purposes of the organisation. Feldman argues that these may lead to the restriction of the scope or seeking justice for the individual claimant (a well-known rationalization for discretion), as individualised justice may possibly result in the development of injustice between claimants. An example put forward by Griffith is that, managers make employees aware of the goals through training and monitoring. ...read more.


It would therefore appear that rules preserve consistency whilst promoting unfairness. West concludes that when reviewing the qualities, by which rule-based decision- making is valued, the majority of its aims 'conflict with most of the others.' Conclusion It has become clear through the research on this topic that rules are not merely the antithesis of discretion, and rules cannot replace discretion. Generally rules embody discretion as rules are rarely formulated with enough exactitude to eradicate discretion. The exercise of discretion is therefore inevitable as discretion is logically necessary when enforcing rules. Discretions are inherent in the structure of rules; the option to formulate rules, 'policy discretion', may, for instance, be transferred throughout the entire system: 'from lower levels officials to higher ones, or onto judges, or onto Parliament, or whatever,' as it cannot be completely eradicated. 'Judgement discretion', exercised each time rules are interpreted is similarly difficult to eliminate, as remarked by Cohen, 'judges are not slot machines'. Furthermore, even when the court applies precise and unambiguous rules, they have at their disposal doctrines, such as the principle of human rights to alter the rules. Also as implied by Goodin every unacceptable feature of discretion such as inaccessibility, inequality, arbitrariness and uncertainty, are all achievable in a rule-based decision-making system. With the final words of Baldwin, 'Rules may commence life as short, clear statements but they tend to become less accessible and more fudged as powerful interests are accommodated and political flak is side-stepped. ...read more.

The above preview is unformatted text

This student written piece of work is one of many that can be found in our University Degree English Legal System section.

Found what you're looking for?

  • Start learning 29% faster today
  • 150,000+ documents available
  • Just £6.99 a month

Not the one? Search for your essay title...
  • Join over 1.2 million students every month
  • Accelerate your learning by 29%
  • Unlimited access from just £6.99 per month

See related essaysSee related essays

Related University Degree English Legal System essays

  1. Discuss Dicey's three propositions on the concept of the Rule of Law in the ...

    This is why the western juridical tradition is Roman, not Greek. One of the major problems of ancient Greek democracy is that its conception of law does not contain the idea of limitation. The Greek word "eleutheria," commonly translated as "freedom," connotes a freedom that extends into the principle that what pleases the people is law.

  2. The rules of Statutory Interpretation are a sham. The only real rule is discretion. ...

    LR4 QB147. The Golden Rule is really an elaboration, extension or moderation of the Literal rule. It states that words should be used in their Literal meaning only to the extent that it does not produce an absurd or intolerable verdict.

  1. Critically assess Dworkin's claim that judges do not have any discretion to make the ...

    Therefore principles of the first kind cannot be binding because they do not dictate a result they are too general. Dworkin's formulation of principles is also at odds with the logical role of principles in the law which rather presupposes the use of discretion.

  2. 'There is too much discretion, and not enough law, in the sentencing process.' Discuss

    may be part of exercising discretion.8 As recognised by Davis the most frequent injustice occurs at the discretion end of the sentencing scale, where rules and principles provide little or no guidance, where emotions of deciding officers may affect what they do, where political or other favouritism may influence decisions

  1. Evaluate the development of the covenant in equity. To what extent has this concept ...

    could not sue in their own right. Whilst the doctrine of marriage consideration still survives it has little use in modern society and is unlike to ever expand beyond its narrow boundaries.22 The exception to the maxim that equity will not assist a volunteer can be found in Strong v.

  2. a and others v secretary of state 2004

    to the appellant without imposing a burden of proof on either party that they would not be able to discharge. There seems to be a division in the house as to which test of the burden of proof to apply.

  1. Evaluation of the court's judgement in R (on the application of Smith and West) ...

    require that a person who may be adversely affected but the decision will have an opportunity to make representations on his own behalf, either before the decision is taken...or after it is taken, and finally...fairness will very often require that [the person affected] is informed of the gist of the case which he has to answer10.

  2. Dignity In Old Age Act Admin

    of these two articles according to the consistent jurisprudence of the European Court of Human Rights. This is a clear ground of Right to a fair trial of article 6 of the Human rights Act. This is a clear ground for judicial review and could be brought before the Strasbourg court if it was unsuccessful before UK courts.

  • Over 160,000 pieces
    of student written work
  • Annotated by
    experienced teachers
  • Ideas and feedback to
    improve your own work