In this field questions arise which are certainly difficult; but as I listened last time to members of the group, I felt that the main difficulty perhaps lay in determining precisely what questions we are trying to answer. I have the conviction that if we could only say clearly what the questions are, the answers to them might not appear so elusive. So I have begun with a simple list of questions about discretion which in one form or another were, as it seemed to me, expressed by the group last time. I may indeed have omitted something and inserted something useless: if so, no doubt I shall be informed of this later.
The central questions then seem to me to be the following:
- What is discretion, or what is the exercise of discretion?
- Under what conditions and why do we in fact accept or tolerate discretion in a legal system?
- Must we accept discretion or tolerate discretion, and if so, why?
- What values does the use of discretion menace, and what values does it maintain or promote?
- What can be done to maximize the beneficial operation of the use of discretion and to minimize any harm that it does?
For example, I have not included the psychological question raised by Professor Freund: what are the psychological conditions of a sound use of discretion? I have omitted this because I believe that if we clearly understand what it is to exercise a discretion and what in different fields counts as the satisfactory exercise of a discretion, we shall not really have to face an independent psychological question of the form: what are the psychological conditions of its sound exercise or how are we psychologically able to exercise a discretion? Indeed, I think this question, which looks on the surface to be one of empirical psychology, perhaps really expresses in a rather misleading form just our initial unclarity about what discretion is and what in various fields we count as a sound exercise of discretion. But only further exploration of our subject will show whether I am right in this, and I may very well not be right.