Discretion as a General Legal Category: Propaedeutic Aspect

Abstract

.  Purpose. The purpose of the study is to cover those provisions that serve as the methodological basis for the general theoretical understanding of discretion. Methods. The systems analysis method for revealing the nature of discretion as a complex legal phenomenon, in particular its boundaries and principles of implementation, was used in the study. The method of logical generalization allowing integrating various theoretical approaches to the study of discretion into a single conceptual system was applied. Results. The article provides a comprehensive analysis of discretion as a general legal category that plays a key role in application of law and functioning of the legal system. Discretion is considered as a phenomenon that ensures the flexibility of law enforcement in conditions of legal uncertainty allowing the legal system to adapt to dynamic social changes. Special attention is paid to the classification of discretion types, among which judicial, administrative and prosecutorial discretion are distinguished. The specifics of prosecutorial discretion, which is characterized by a special status within criminal proceedings, focusing on its role in assessing evidence and making procedural decisions, are accentuated. The article emphasizes the importance of establishing clear boundaries of discretion, which helps ensure its legitimacy and prevent abuse of power. The discretion exercising fundamental principles, among which there are the following key principles: the principle of the rule of law, the principle of proportionality, the principle of legal certainty, the principle of equality and the principle of accountability are analyzed. Compliance with these principles is considered a necessary condition for effective, fair and transparent law enforcement. The methodological aspect of the discretion study encompasses an approach within which the phenomenon is considered through the interaction of positive and natural law, which allows integrating the formal and legal characteristics of discretion with its value oriented component that is based on the principles of justice, humanism and responsibility. Conclusions. It is summarized that discretion is an integral part of the legal system, which ensures a balance between normative certainty and freedom of subjects’ actions. Its research and improvement is an important direction of modern legal science contributing to increasing the efficiency and fairness of law enforcement.