Idealist – Discouraged
Pragmatist – Necessary
Discretion within the Law is a perplexing concept. The most sophisticated jurists and the most naïve practioneer share the ambiguity of this concept and both question how much discretion is acceptable. Jurists very often refer to discretion as the scope of authority that judges have in making their decisions. Whoever philosophically discusses the issue of discretion must at sometime or another confront the real world of the police officer. How does a police officer exercise this authority and who determines for the individual patrol officer the acceptable limits of discretion? Discretion within the law requires every Criminal Justice professional to answer the question, what is the relationship between morality and the law?
In a perfect world there is no need for
discretion, either the laws will cover all circumstances clearly and
adequately, or individual behavior would never deviate enough to violate the
law. Of course, this is not a perfect world and discretion is necessary, but
how can the police use discretion most perfectly? Again the political and
philosophical differences between the Pragmatists and the Idealists are quite
clear. (The Pragmatists recognizing the imperfections of the law requires the
individual to use discretion.) The Idealist also realizes that the world is
imperfect, but believes a good law benefits the majority and may be enforced
without regard to specific consequences.
Learning objective: The student is to understand that many of the
complexities of the law are placed in this nebulous arena of discretion.
Idealists with a Rational application of the law believe that there should be
limited amounts of discretion for Criminal Justice professionals. Excessive
discretion would, for the Idealists, jeopardize the moral foundation of the
law. Pragmatists, however, believing that the application of the law is
irrational have determined that the human element of discretion is essential if
morality and the law is to be evenly applied.