Discretion from a Legal Perspective

While not all legal scholarship fits in a so-called legal paradigm, a specific approach to discretion is still occasionally attributed to legal scholarship as such. Particularly some socio-legal scholars are inclined to contrast it with their own approach to the study of discretion. The chapter starts by describing the main characteristics attributed to the legal paradigm. Subsequently, it is illustrated how a socio-legal approach of discretion complements the legal paradigm by rendering visible the variable ways in which discretion is used in practice which research that fits in the legal paradigm cannot. The illustration is based on a case study of judges’ use of sentencing discretion in lower courts. Next, it is argued that contrasting the legal paradigm with a socio-legal approach may come at a cost. Differences between a legal and a socio-legal approach to the study of discretion may be overstated while commonalities may be missed.

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