Discretion

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discretion

n. the power of a judge, public official or a private party (under authority given by contract, trust or will) to make decisions on various matters based on his/her opinion within general legal guidelines. Examples: 1) a judge may have discretion as to the amount of a fine or whether to grant a continuance of a trial; 2) a trustee or executor of an estate may have discretion to divide assets among the beneficiaries so long as the value to each is approximately equal; 3) a district attorney may have discretion to charge a crime as a misdemeanor (maximum term of one year) or felony; 4) a Governor may have discretion to grant a pardon; or 5) a planning commission may use its discretion to grant or not to grant a variance to a zoning ordinance.

Copyright © 1981-2005 by Gerald N. Hill and Kathleen T. Hill. All Right reserved.

DISCRETION, practice. When it is said that something is left to the discretion of a judge, it signifies that he ought to decide according to the rules of equity, and the nature of circumstances. Louis. Code, art. 3522, No. 13; 2 Inst. 50, 298; 4 Serg. & Rawle, 265; 3 Burr. 2539.
     2. The discretion of a judge is said to be the law of tyrants; it is always unknown; it is different in different men; it is casual, and depends upon constitution, temper, and passion. In the best, it is oftentimes caprice; in the worst, it is every vice, folly, and passion, to which human nature is liable. Optima lex quae minimum relinquit arbitrio judicis: optimus judex qui minimum sibi. Bac. Aph; 1 Day's Cas.. 80, ii.; 1 Pow. Mortg. 247, a; 2 Supp. to Ves. Jr. 391; Toull. liv. 3, n. 338; 1 Lill. Ab. 447.
     3. There is a species of discretion which is authorized by express law, and, without which, justice cannot be administered; for example, an old offender, a man of much intelligence and cunning, whose talents render him dangerous to the community, induces a young man of weak intellect to commit a larceny in company with himself; they are both liable to be punished for the offence. The law, foreseeing such a case, has provided that the punishment should be proportioned, so as to do justice, and it has left such apportionment to the discretion of the judge. It is evident that, without such discretion, justice could not be administered, for one of these parties assuredly deserves a much more severe punishment than the other.

DISCRETION, crim. law. The ability to know and distinguish between good and evil; between what is lawful and what is unlawful.
     2. The age at which children are said to have discretion, is not very accurately ascertained. Under seven years, it seems that no circumstances of mischievous discretion can be admitted to overthrow the strong presumption of innocence, which is raised by an age so tender. 1 Hale, P. C. 27, 8; 4 Bl. Coin. 23. Between the ages of seven and fourteen, the infant is, prima facie, destitute of criminal design, but this presumption diminishes as the age increases, and even during this interval of youth, may be repelled by positive evidence of vicious intention; for tenderness of years will not excuse a maturity in crime, the maxim in these cases being, malitia supplet aetatem. At fourteen, children are said to have acquired legal discretion. 1 Hale, P. C. 25.

A Law Dictionary, Adapted to the Constitution and Laws of the United States. By John Bouvier. Published 1856.
References in periodicals archive ?
At the end of the designated sandbox period (which as mentioned, is a maximum of nine months with the possibility of an entirely discretional extension of three months) the applicant exits the regulatory sandbox, and may apply for the relevant CBB licence depending on the precise activities of the applicant.
Within this study's framework, CSR is understood from a more social and discretional perspective, as that which "implies all the actions beneficial to society, excluding abiding by institutionally (human rights, sustainable development, work legislation, etc.), the compensation of collateral effects and improvement of the business environment" Toca, Grueso, Carrillo and Lopez, 2012, p.
My use of ethnographic techniques in the case study on CWHs, allows me to refer to the singularity of the community mothers as discretional actors and to the meaning of this discretionality within the framework of the implementation of a social policy of childcare in Colombia.
"The PRI lost seven gubernatorial races because of discretional and mistaken decisions taken by Pena Nieto," columnist Raymundo Riva Palacio wrote in the daily newspaper El Financiero.
It contains the phases of design, application and analysis of checklists, identification and analysis of archetypes, and discretional analysis (Figure 2).
Furthermore, while the act limits an agent to powers specifically granted in the POA, as mentioned, the act also confers upon the agent the "authority reasonably necessary to give effect to that express grant of specific authority," (40) thus, permitting some discretional latitude, but again, how much?
(9) Insanity, which is the only freedom left to the inhabitants of Brooklands is explained as "discretional psychopathic activity".
The Chief Minister said that this force had always its self as a discretional, dedicated and highly professional force.
Further interest in using outcome probabilities to supporting patient decision making is likely to stimulate efforts to obtain strong outcome data on major discretional treatment strategies.
The financing of EU's bilateral aid is moderately progressive, but it is discretional, it does not fulfil the 0,7% international aid target, and it is improvable in terms of "distributive justice".
"A key part of our operation is the contact centre, which drives sales for the business, and - as confi-dence grows - businesses are spending money on discretional services again, like advertising.