H. L. A. Hart's Lost Essay: 'Discretion' and the Legal Process Dchool

By Shaw, Geoffrey C. | Harvard Law Review, December 2013 | Go to article overview

H. L. A. Hart's Lost Essay: 'Discretion' and the Legal Process Dchool


Shaw, Geoffrey C., Harvard Law Review


B. What Is Discretion?

1. The Analytical Approach to Definition.--Hart devoted a large portion of his paper to the first question: "What is discretion ...?" It was a classic application of Hart's linguistic method. He believed that providing an account of a concept requires analyzing the way ordinary speakers use the words associated with that concept. (180) To analyze discretion, therefore, Hart investigated the uses of the word "discretion" in a variety of different contexts--legal and nonlegal--and then inferred the general principles at play. (181) While Hart was aware that there were borderline cases--penumbral situations that might or might not be classified as discretion--he mainly aimed to contribute a clear theory of the core phenomenon: when we all agree discretion is present, what is it? (182) A clear definition of the core phenomenon was, in Hart's view, what the group needed most: "[t]he position" of the group with respect to discretion, Hart speculated, was "parallel to a person who knows his way about town by rote but could not draw a map of it or the crude case where we can say that I can recognize an elephant but I could not define the term 'elephant' for you." (183)

2. Hart's Taxonomy of Discretion in Law.--Hart began his analysis of the core phenomenon by considering a broad list of cases where discretion occurs in the legal system. Hart was not concerned with discretion in courts alone; he was aware that discretion arises not just in statutory or constitutional interpretation, but also in many other settings. Although it would become clear that the role of judges was of special concern for Hart (as it was for the process theorists), he warned against focusing too much on one kind of example at the outset, advising the group "to remind ourselves of the tremendous diversity of the situations in which this phenomenon appears, for nothing in this field is so misleading as over-concentration on one sort of example." (184)

The main distinction in Hart's taxonomy of discretion in law was simple. (185) Sometimes, lawmakers explicitly delegate discretionary power to officials or institutions--the powers, say, to set interest rates, to end hunting season, to appoint officials, to issue licenses, and so on. In Hart's terminology, these are examples of "Express or Avowed ... Discretion." (186) By contrast, in cases of "Tacit or Concealed Discretion," (187) the legal system does not explicitly grant discretionary authority to an official; instead, the official, making an effort to apply rules intended to be as dispositive as possible, finds that the rules do not yield a determinate result, making necessary the exercise of discretion. Key examples in this category are "disputable questions" (188) in statutory interpretation and the application of precedent. (189) A third category, which received no further discussion, includes cases of "Discretionary Interference or Dispensation from Acknowledged Rules": pardons and "[i]njunction[s] against exercise of common law remedies." (190)

Hart further noted that institutions are sometimes charged with exercising multiple forms of discretion. "Express or Avowed ... Discretion," for example, can be exercised by "administrative bodies" (Hart identified the now-defunct Interstate Commerce Commission and "Fish and Game Commissioners" as possibilities), or by courts in the cases of sentencing, "[d]iscretionary remedies," and the application of standards, like "reasonable care," so broad as to be understood as constituting an explicit grant of discretionary authority. (191) Delving deeper into institutional roles, Hart pointed out that this form of standard-applying discretion is entrusted sometimes to judges, and sometimes to juries. (192) Hart classified most appellate adjudication in "disputable ... case[s]" (193)--the most politically charged form of decisionmaking on the list--as "Tacit or Concealed ... Discretion" exercised by courts. (194)

3. …

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H. L. A. Hart's Lost Essay: 'Discretion' and the Legal Process Dchool
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