Discretion as a Legal Category in Modern Jurisprudence

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Discretion as a Legal Category in Modern Jurisprudence

Journal Title: Lex portus - Year 2017, Vol 4, Issue 2

Abstract

Human rights in our country are developing in the direction of capacity expansion of human activity in society and in the state as an active figure, endowed with a wide range of legal abilities. This process raises new questions to the legal theory scientists, whose thoughts create concepts, doctrines that guide later generations. As an example – the Humancentrism doctrine which is gaining increasing credibility in the rulemaking activity of the state. And the discretion as a legal category occupies a special place in this doctrine, though there is no unified definition in the theoretical law. In the legal literature, discretion is understood in different ways, as a discretionary principle, discretionary basis, dispositive method of legal regulation, the discretion rule of law, discretionary subjective right, a legal institution (the set of dispositive law). Interesting point of view is the understanding discretion as a “quality” of law. Analyzing these definitions in light of the characteristics of discretion as a right, it can be argued that without the choice, the law loses the most important aspect of its influence on social relations and relations between man and the state - freedom, the ability to regulate legal relations not from a position of compulsion of the state, but also from the position of human beings, citizens, lever which determines the way the state develops at a particular stage of its activity. Based on the analysis, we consider the definition of discretionary on general theoretical level, as the common category for all areas of law might look like this: discretion - quality of law, which is manifested in the legal freedom (possibility) based on its rules, to make decisions, act or refuse to fulfill actions, to acquire, realize, dispose of their subjective rights and perform the assigned duties or powers at their own discretion within the framework of the law. In this definition, the functional role of discretionary principles expressed in ensuring the optimal balance private law and public law aspects of the regulation of legal relations in various fields of material and procedural law, both private and public law.

Authors and Affiliations

Олена Гладка, Елена Гладкая, Helen Gladkaya

Keywords

discretion quality of law freedom opportunity of choice

EP ID EP239367
DOI -
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