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NeCede's

Maxim 10.4.5

Discretion is to discern through law what is just.

Discretio est discernere per legem quid sit justum.

Source: 5 Co. 99, 100; 4 Inst. 41; 1 Bl. Comm. 152; Weisman, 31g Difficulty 2/5 — Approachable

Explanation

Judicial discretion is not arbitrary choice — it is the disciplined application of law to fact, discerning what justice requires in the particular case.

Where this applies

  • The judge is exercising personal preference rather than applying the law to the facts.
  • Judicial discretion should be about discerning what's just under the law, not arbitrary choice.
  • Discretion means applying law to fact in a disciplined way, not doing whatever you want.

Legal domains

interpretationprocedural

See also

Cite this maxim

NeCede Max. 10.4.5 — Discretion is to discern through law what is just. — 5 Co. 99, 100; 4 Inst. 41; 1 Bl. Comm. 152; Weisman, 31g (Discretio est discernere per legem quid sit justum.)

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