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Legal Theory Lexicon: Discretion

Introduction

Law students are likely to encounter the concept of discretion early in the first year of law school.  Judges make decisions.  Some of these decisions are constrained by law, but others are made in contexts in which the law permits the judge a range of choice or discretion.  Likewise, sometimes executive officials carry out legal duties, but other executive actions are discretionary.  This Lexicon entry provides a brief introduction to the idea of discretion.  As always, the Lexicon is aimed at law students with an interest in legal theory.

The Idea of Discretion

The word “discretion” is ambiguous.  One sense of “discretion” refers to good judgment; another to being circumspect or cautious.  The sense of “discretion” that is discussed in this Lexicon entry is associated with this definition from Merriam-Webster: “power of free decision or latitude of choice within certain legal bounds.”  In this sense, “discretion” is contrasted with constraint.  A decisions is constrained if the actor making the decision is bound by law to take a certain action.

The word “discretion” is usually used to refer to actions where the law confers a power within a limited sphere of action.  Kent Greenawalt expressed this idea when he wrote, “When a person’s choice is not constrained at all we would not ordinarily use the term “discretion.” We say an official has “discretion” to pick employees for a company, but we do not say a child has “discretion” to choose the flavor of ice cream he wants.” (Greenawalt 1975, p. 365)

In the law, we use the word “discretion” in situations in which a legal norms confers legal authority or power on some agent or institution.  Judicial decisions about the number of witnesses that will be allowed to testify on a given issue are said to be discretionary: there is no rule that specifies the number of witnesses or provides a formula for the calculation of such a number.  Presidents are legally empowered to choose the members of the staff; these decisions are discretionary, because there is no legal rule or standard that governs the President’s decision.  Legislatures as institutions have wide discretion to choose what laws to make and to define the content of such laws.

But the existence of discretion does not imply an absolute power without outer limits.  For example, a judge could not limit the number of witnesses in order to exclude witnesses of a certain race or gender: although this is a discretionary decision, the law prohibits making the choice for some reasons.  Similarly, a decision may be discretionary, but there may be a requirement that the decisionmaker take certain factors into account in making the decision.  Thus, a judge may be obliged to consider the impact of limiting the number of witnesses on the ability of the parties to prove their case, even though there is no rule or standard that governs the decision. The judge’s exercise of discretion may be guided in other ways as well. These might include a specification of the aims meant to be achieved by the exercise of discretion, the exclusion of certain factors from consideration, a reminder about certain ways the exercise of discretion might fail, and a reason-giving requirement.

Judicial Discretion and Interstitial Lawmaking

One realm in which the idea of judicial discretion operates is in the realm of interstitial judicial lawmaking.  The idea that judges possess a discretionary power to make law was articulated by Benjamin Cardozo in The Nature of the Judicial Process:

The choice of methods, the appraisement of values, must in the end be guided by like considerations for the one as for the other. Each indeed is legislating within the limits of his competence. No doubt the limits for the judge are narrower. He legislates only between gaps. He fills the open spaces in the law …. None the less, within the confines of these open spaces and those of precedent and tradition, choice moves with a freedom which stamps its action as creative. The law which is the resulting product is not found, but made. The process, being legislative, demands the legislator’s wisdom. (Cardozo 1921, pp. 113-15)

Cardozo then uses the idea of discretion to contrast interstitial lawmaking with cases in which judges are bound or constrained by existing law: “[i]n countless litigations, the law is so clear that judges have no discretion. They have the right to legislate within gaps, but often there are no gaps.” (Cardozo, 1921, pp. 129).

The idea that judges have discretion in the realm of interstitial lawmaking is controversial.  Ronald Dworkin’s Right Answer Thesis is the claim that even common-law judges have a legal duty to reach a legally correct answer in cases in which there is no prior case with a binding holding.  Unlike Dworkin, many legal realists believe that interstitial lawmaking involves discretion: when there is no controlling prior decision, the role of the judge is essentially the same as that of a legislator.

Even more controversial is the claim that judges, on courts of last resort like the United States Supreme Court, always possess quasi-legislative discretion.  For example, originalist constitutional theory holds that judges are bound by the original meaning of the constitutional text, but some living constitutionalists deny this.  For example, a common law constitutionalist might take the position that the constitutional text does not bind the Supreme Court, and that the Court has a discretionary power to make constitutional law that is inconsistent with the text.

Discretion Granting Language

Sometimes the law uses the word “discretion” to signal that a power conferring legal norm creates discretion.  But this is not always the case.  For example, the word “may” is frequently used to confer a discretionary power, whereas the word “must” is used to create a legal duty.  For example, Federal Rule of Civil Procedure 13 distinguishes between compulsory and permissive counterclaims.  The word “must” is used in Rule 13(a) to convey the idea that such counterclaims must be brought by a defendant.  The word “may” is used in Rule 13(b) to indicate that defendants have discretion to decide whether or not to bring permissive counterclaims.

Abuse of Discretion and Appellate Review

Another context in which the idea of discretion arises involves standards of appellate review.  When a trial court judge makes a decision of law (e.g., granting or denying a motion for summary judgment), the standard of appellate review is de novo; the trial judge has no discretion.  But many trial court decisions are discretionary, including, for example, trial management decisions about the number of witnesses or the time allotted for questioning of a particular witness.  When an appellate court reviews these decisions, the standard of appellate review is “abuse of discretion.”  Consideration of an improper factor (such as a bribe or personal animus) or the failure to consider a mandatory factor may render a decision an abuse of discretion–even if the decision would have been proper if it had been reached on the basis of proper reasons.

Executive and Legislative Discretion and Judicial Review

Another context in which the idea of discretion plays an important role is provided by judicial review of executive and legislative actions.  There are many actions by legislatures and executives that are discretionary: there is no legal duty that specifies what must be done.  One clear example is prosecutorial discretion.  In the United States (but not everywhere else), prosecutors have discretion to refrain from brining criminal charges, even if the prosecutor is aware of criminal conduct and the evidence of guilt is so overwhelming that no case could be made for reasonable doubt.  On the other hand, prosecutors do not have discretion to bring criminal charges where there is no evidence of guilt.

Similarly, lawmakers have substantial discretionary power in the legislative process.  There is no legal duty to enact the Green New Deal, even if there are overwhelming good reasons to do so.  Likewise, there is no legal prohibition on enacting a repeal of the Clean Air Act, even if this decision were demonstrably against the public interest.  But the discretion of lawmakers is nonetheless bounded, both by the scope of lawmaking authority (i.e., the enumerated powers of Congress) and by rights conferring provisions (i.e., the freedom of speech).

Thus, judicial review of executive or legislative action necessarily involves the idea of discretion.  Courts will defer to decisions that are within the discretionary powers of executive officials or legislative institutions.  Judicial review that invalidates an action by an executive official or legislature is proper when discretion runs out.

Discretion and Other Forms of Legal Norms

Discretion is a form of legal norm, but there are many other forms as well.  At the other end of the spectrum from discretion are legal rules–legal norms that provide bright lines sorting official conduct into prohibited and permitted categories.  Standards provide officials with a set of mandatory considerations and may also provide procedure for weighing or combining these considerations: balancing tests are the paradigm case of a legal norm in the form of a standard.  Legal principles provide mandatory considerations, but may be consistent with the exercise of discretion, so long as the principle is taken into account in cases in which it is relevant.

The question whether to give a legal actor is one of institutional design.  Discretion might be granted because it is believed that the legal actor or institution granted discretion will make better decisions on a case-by-case basis than would be made if a legal rule or standard were to govern the decision.  The decision not to grant discretion may entail judicial review, which has costs and benefits.

De Facto and De Jure Discretion

The question whether discretion exists has at least two dimensions.  We might use the phrase “de jure discretion” to designate cases in which the legal rules explicitly confer discretion on a given official or institution.  But it might be the case that even though a decision is, in theory, governed by a rule or standard, it is, in fact, discretionary, because violations of the rule are not effectively subject to correction.  For example, it might be argued that in theory, the Supreme Court is bound by the constitutional text, but in practice, the Court has discretion, because the decisions of the Supreme Court on constitutional questions are final.  Thus, the Court might have de facto discretion to make constitutional law, even though it has not de jure power to do so.

Conclusion

Discretion is a complex subject, and this Lexicon entry has only scratched the surface.  Nonetheless, I hope that I have provided an introduction to this important concept and some of the contexts in which it is important.

Related Lexicon Entries

Bibliography

  • Aharon Barak, Judicial Discretion (1989).
  • Benjamin Cardozo, The Nature of the Judicial Process (1921).
  • Ronald Dworkin, Judicial Discretion, 60 J. Phil. 624 (1963).
  • Kent Greenawalt, Discretion and Judicial Decision: The Elusive Quest for the Fetters That Bind Judges, 75 Colum. L. Rev. 359 (1975).

Link to the Most Recent Version of this Lexicon Entry

My thanks to Professor Samuel Bray who provided useful suggestions.

(Last revised on December 28, 2025.)

Lawrence Solum

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