In modern society the law regulates the complex behavior of millions of people. To do this efficiently-to do this at all-broadly applicable rules must be used. Yet such rules are bound to be incomplete, to be ambiguous, to fail in some cases, to be unfair in others. Some of the drawbacks of rules can be minimized by giving discretion to the administrators and judges who apply them. Yet doing so dilutes the advantages of rules and creates the risk that discretion may be abused. Working out the proper balance of these considerations is both necessary and perplexing in every area of law.
Scholars, lawyers, and judges are hardly unaware of these problems. Those who have most directly addressed the problem of discretion fall primarily into two groups. The first group comprises of those-principally sociologists I and political scientists, but also some lawyers-who examine discretionary decisions and ways of controlling discretionary decisions in various particular bureaucratic contexts, most extensively tthe police. The second group consists of the legal philosophers who have for decades, if not centuries, asked, 'Do judges in some cases have freedom in resolving legal issues to decide them more than one way, or are judges always legally bound to reach one conclusion rather than any others?' (Greenawalt 1975: 365). The former group thus directs its attention to highly context-specific questions, the latter to highly abstract questions.
This chapter falls into neither category. Rather, it looks at the problem of discretion and rules from a lawyer's point of view. In thinking about how the law can best serve its purposes, lawyers are repeatedly confronted with what may be crudely described as a tension between writing rules and giving someone (to the lawyer's mind, usually a judge) discretion. In this chapter I consider how that tension should be handled. I ask what kinds of advantages rules and discretion seem systematically to offer and what kinds of disadvantages they seem systematically to present. While I cannot pretend that my answers will be those of a typical lawyer (if only because there is probably no such person), I do hope that they will give the reader of this volume some insight into the kinds of issues the tension between discretion and rules seems to lawyers to raise and the ways lawyers commonly deal with them.