The Discretion of the Judge*

Any lack of certainty as to what judicial discretion is may be thought undesirable. For if judicial discretions are dangerous as capable of leading to arbitrariness, it is as well judges should be quite clear when they are exercising a discretion and when not, and if the exercise of a discretion is a barrier to an appeal then appellate judges should similarly recognise when the barrier exists and when it does not. A judge has no discretion in making his findings of fact. He has no discretion in his rulings on the law. But when, having made any necessary finding of fact and any necessary ruling of law, he has to choose between different courses of action, orders, penalties, or remedies, he then exercises a discretion. It is only when he reaches the stage of asking himself what is the fair and just thing to do or order in the instant case that he embarks on the exercise of a discretion. This chapter proffers a definition that is broadly consistent with the usage adopted in statutes.