Definition of DISCRETION in Black's Law Dictionary 4th Edition – Legal dictionary – Glossary of legal terms.
Definition of DISCRETION
Power or privilege of the court to act unhampered by legal rule. Osborn v. United States Bank, 9 Wheat. 866, 6 L.Ed. 204; Murray v. Buell, 74 Wis. 14, 41 N.W. 1010, 11 L.R.A. 446.
When applied to public functionaries, discretion means a power or right conferred upon them by law of acting officially in certain circumstances, according to the dictates of their own judgment and conscience, uncontrolled by the judgment or conscience of others. This discretion undoubtedly is to some extent regulated by usage, or, if the term is preferred, by fixed principles. But by this is to be understood nothing more than that the same court cannot, consistently with its own dignity, and with its character and duty of administering impartial justice, decide in different ways two cases in every respect exactly alike. The question of fact whether the two cases are alike in every color, circumstance, and feature is of necessity to be submitted to the judgment of some tribunal. State v. Tindell, 112 Kan. 256, 210 P. 619, 622. Board of Permanent Road Com'rs of Hunt County v. Johnson, Tex.Civ.App., 231 S.W. 859, 860.
Judicial Discretion, Legal Discretion
These terms are applied to the discretionary action of a judge or court, and mean discretion as above defined, that is, discretion bounded by the rules and principles of law, and not arbitrary, capricious, or unrestrained. "Judicial discretion" is substantially synonymous with judicial power. Griffin v. State, 12 Ga.App. 615, 77 S.E. 1080, 1083. It is not the indulgence of a judicial whim, but the exercise of judicial judgment, based on facts and guided by law, Smith v. Hill, C.C.A., 5 F.2d 188, or the equitable decision of what is just and proper under the circumstances, People v. Pfanschmidt, 262 Ill. 411, 104 N.E. 804, 816, Ann.Cas.1915A, 1171. It is simply the technical name of the decision of certain questions of fact by the court. Nawn v. Boston & M. R. R., 77 N.H. 299, 91 A. 181, 182.
Lord Coke defines judicial discretion to be "discernere per legem quid sit justum," to see what would be just according to the laws in the premises. It does not mean a wild self-willfulness, which may prompt to any and every act; but this judicial discretion is guided by the law, (see what the law declares upon a certain statement of facts, and then decide in accordance with the law,) so as to do substantial equity and justice. Faber v. Bruner, 13 Mo. 543. It is a legal discretion to be exercised in discerning the course prescribed by law ' and is not to give effect to the. will of the judge, but to that of the law. McGurty v. Delaware, L. & W. R. Co., 158 N.Y.S. 285, 286, 172 App. Div. 46.
True, it is a matter of discretion; but then the discretion is not willful or arbitrary, but legal. And, although its exercise be not purely a matter of law, yet it "involves a matter of law or legal inference," in the language of the Code, and an appeal will lie. Lovinier v. Pearce, 70 N. C. 171.
Legal discretion is the exercise of discretion where there are two alternative provisions of law applicable, under either of which court could proceed. Shannon v. Hendrixson, Ohio App., 32 N.E.2d 431, 432.
In criminal law and the law of torts, it means the capacity to distinguish between what is right and wrong, lawful or unlawful, wise or foolish, sufficiently to render one amenable and responsible for his acts. Towle v. State, 3 Fla. 214.
Wise conduct and management; cautious discernment, especially as to matters of propriety and self-control; prudence; circumspection; wariness. Arkansas Valley Town & Land Co. v. Atchison, T. & S. F. Ry. Co., 49 Okl. 282, 151 P. 1028, 1031.
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That's the definition of DISCRETION in Black's Law Dictionary 4th Edition – Legal dictionary – Glossary of legal terms. Courtesy of Cekhukum.com.
