legal studies discretion essay

H.L.A. Hart’s Lost Essay: Discretion and the Legal Process School

• Geoffrey C. Shaw
• December 2013
• See full issue

This Essay analyzes an essay by H. L. A. Hart about discretion that has never before been published, and has often been considered lost. Hart, one of the most significant legal philosophers of the twentieth century, wrote the essay at Harvard Law School in November 1956, shortly after he arrived as a visiting professor. In the essay, Hart argued that discretion is a special mode of reasoned, constrained decisionmaking that occupies a middle ground between arbitrary choice and determinate rule application. Hart believed that discretion, soundly exercised, provides a principled way of coping with legal indeterminacy that is fully consistent with the rule of law. This Essay situates Hart’s paper – Discretion – in historical and intellectual context, interprets its main arguments, and assesses its significance in jurisprudential history. In the context of Hart’s work, Discretion is notable because it sketches a theory of legal reasoning in depth, with vivid examples. In the context of jurisprudential history, Discretion is significant because it sheds new light on long-overlooked historical and theoretical connections between Hart’s work and the Legal Process School, the American jurisprudential movement dominant at Harvard during Hart’s year as a visiting professor. Hart’s Discretion is part of our jurisprudential heritage, advancing our understanding of legal philosophy and its history.

• Legal Theory

December 20, 2013

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Legal Studies - Crime: Discretion essay structure

Essay structure for crime, specifically discretion.

This essay structure lists out all the important info including your thesis and legislation for each paragraph but lets you apply your own finish to avoid plagiarism checkers.

It's set out in the format "statistic, thesis, intro, PEARJAM, legal, non-legal, conclusion" for easy comprehension with all the fancy terminology for you to use.

Written by a Band 6/straight A student for Lindisfarne Anglican Grammar School.

More notes by Fredrick

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Legal constraints and judicial discretion in sentencing practice: Appraisal analysis of the sentencing remarks for Terri Palmer

Xin Dai is currently a PhD student in Cardiff University. Her research interests include discourse analysis, systemic functional linguistics, and forensic linguistics. Address for correspondence: School of English, Communication and Philosophy, Cardiff University, Cardiff CF10 3EU, UK. Email: [email protected]

In the sentencing of murder cases in England and Wales, it is required by law that judges must take into consideration the factors listed in sentencing laws and guidelines (henceforth statutory factors). However, judges also have the discretion to include factors that are not listed in such laws or guidelines (henceforth non-statutory factors). This paper explores judges’ positioning towards legal constraints and judicial discretion in sentencing by applying the Appraisal framework to analyse statutory and non-statutory factors in the sentencing remarks for a randomly selected murder case. The major analytical findings are that, with regard to statutory factors, attitudes are implicit and are mainly presented through heteroglossia, while, with regard to non-statutory factors, attitudes are explicit and are mainly presented through monoglossia. These different appraisal features of statutory and non-statutory factors reflect the constraints of sentencing laws and guidelines on the judge’s sentencing practice, and the judge’s full play of judicial discretion in the sentencing of this case. It is expected that findings of this study could add to current understanding of sentencing practice, while its analytical procedure could facilitate appraisal analysis of more sentencing remarks, which would, in turn, complement socio-legal studies on sentencing practice.

About the author

Acknowledgements.

The writing of this paper owes a lot to the guidance of Dr Gerard O’Grady and Dr Chris Heffer, to whom I express my sincere gratitude. I also thank the anonymous reviewers for their useful suggestions. The generous funding by the China Scholarship Council is acknowledged.

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Themes and Challenges in Legal Studies

Saturday 23rd, July 2016

Elyse Popplewell

Themes and Challenges

The themes and challenges of the legal syllabus are perpetually overlooked by students. We often look for “buzz words” to improve sophistication and increase the relevancy of our argument, and very rarely do we realise that the Board of Studies actually give them to us.

What’s the go with themes and challenges?

The Legal Studies syllabus takes us through various stages of the Criminal Investigation process, International Crime, Young Offenders and Human Rights. At each of those points, we learn the facts and assess the effectiveness with relevant cases, media, commentary…you know how it is. The themes and challenges are some of the most important tools we have in assessing the effectiveness of the legal system! Not only that, but without them, the syllabus would be very fact based, whereas the themes and challenges prompt you to apply the facts you learn to practical questions, debates, and legal conundrums.

What should I do with them?

First of all, you should learn them. I literally mean know them so well that you could rattle them off. They are phrases, not even full sentences a lot of the time, so committing them to memory won’t be taking up too much valuable brain space.

Once you know them, start weaving them into your notes. Look at where they apply to each section of the syllabus and thread them through. Else, you could organise your study notes so that at the end of each dot point, you write down the themes and challenges and brain storm the legal issues and facts from the dot point that apply to the themes and challenges.

Then you should practice embedding them in a response. The good news is: once they are embedded in your study notes, the work is half done! The bad news is: practice makes perfect. Of course, dropping them in a sentence like a hot potato won’t guarantee the sophistication that a marker looks for. But, making a conscious effort to use the words of the themes and challenges will show as a well-thought out response. We’ll come back to this point.

What are the Crime themes and challenges?

The role of discretion in the criminal justice system.

Discretion is essentially what you use each and every day when you make a decision based on what’s in front of you. Discretion is used in various stages of the criminal justice system.

The most notable place where discretion appears in the criminal justice system is in the police powers. A police person may use discretion to decide the use of force necessary, whether or not to use a taser, or whether or not to arrest.

The second most notable place discretion features in the criminal justice system, in my opinion, is at sentencing. The Justice must observe the facts of the court case, including mitigating or aggravating factors, age, likelihood of rehabilitation, cooperation with the legal authorities, remorse, and so on, to decide on the appropriate sentence for the offender.

Or, if you’re too frazzled in your study to read that, here’s a summary of where discretion is seen in the legal system:

Police Powers

Investigation

Charge Negotiation

Issues of compliance and non-compliance in regard to criminal law.

We basically have a legal system because of compliance and non-compliance. The legal system wants to encourage compliance and adequately deal with non-compliance. Compliance with the law is important because of the notion of the rule of law. Every member of society is responsible for their own compliance with the law, and the legal authorities are responsible for making sure the rule of law is applied equally.

Both situational and social crime prevention aim to encourage compliance in our legal system. Similarly, sentences that incorporate a reason of being a deterrent aim to also encourage compliance from members of society.

Non-compliance is the reason we have law enforcement, penalties, and purposes of punishment.

The extent to which law reflects moral and ethical standards.

One reason why we have law reform is because the law aims to reflect the moral and ethical standards of society – which are of course always changing. If you were assessing the effectiveness of the law, you could definitely comment on the way it reflects moral and ethical standards. The Toonen V Australia [1994] and the Croome V Tasmania [1997] case comes to mind here!

The role of law reform in the criminal justice system.

This links quite nicely to the theme and challenge sitting before this one! Law reform is important because if we had stagnant, unchanging laws, we wouldn’t be able to keep up with new technology, new concepts of justice and changing ethical standards (think back to preliminary course here!).

Hypothetically, if you were asked about law reform in an essay question, you would need plenty of cases, and some knowledge from the preliminary course would be handy!

The extent to which the law balances the rights of victims, offenders and society.

This was essentially the 2014 HSC question for Crime, with a few words mixed around. So this is a classic example of how the themes and challenges can become an entire essay question! There is a lot of tension in the legal system. Let’s look at remand. If a suspect is held on remand, it balances the rights of the victim and the community because they have a potentially violent criminal removed from society until trial. But, the tenant of “innocent until proven guilty” remains for an offender, yet they are withheld from society and have a limited right to liberty in remand. This opens up lots of discussion.

The effectiveness of legal and non-legal measures in achieving justice.

This is one of the more simple themes and challenges – simply because it is exposed in various essay questions for the core and the options in past exams. A legal measure is legislated, a non-legal measure is not in legislation. I commonly espoused the belief that the non-legal measures enhance the legal measures and vice versa.

What are the Human Rights themes and challenges?

The changing understanding of the relationship between state sovereignty and human rights.

With an increase of the number of states achieving statehood, and the turbulence that threatens the statehood of current states, state sovereignty becomes a large legal issue. State sovereignty relates to strongly to human rights because there is a responsibility of a state to uphold the rights it has agreed to. With the development of IGOs, like the European Union, we see the importance of state sovereignty and human rights highlighted. A great example of this is the case of Turkey’s expulsion from the EU.

Issues of compliance and non-compliance in relation to human rights.

As is the case with Crime, not all people comply with laws or human rights obligations and responsibilities. For whatever reason, individuals or states may abuse, or conceal abuses of, human rights and show non-compliance for international customary law, as well as whichever treaties they have ratified.

The development of human rights as a reflection of changing values and ethical standards.

It’s important to understand a quick history of human rights. Essentially, they had been developing in various stages all over the globe for some time. After World War Two, the urgency for a uniform, global approach to human rights became apparent. Roosevelt devised the Four Freedoms, which then grew to become the Universal Declaration of Human Rights, as overseen by Eleanor Roosevelt. After the World War Two, the global values and ethical standards of human rights altered, after mass atrocities had occurred.

The role of law reform in protecting human rights.

Particularly, this focuses on domestic legislation. As a country ratifies a treaty, they must bring it into legislation (Australia has a dualist system where the ratification is separate from the signing. Whereas countries like France have a monist system, where signing a treaty automatically ratifies it).

The effectiveness of legal and non-legal measures in protecting human rights.

This could be asked of you in a short answer question, but they’d probably only ask you about legal OR non-legal, and not together. Essentially, anything legislated is a legal measure, and not in legislation is a non-legal measure. The non-legal and legal measures often complement each other, particular in the human rights sector, where various NGOs work to support human rights.

How do I put them in a response?

It’s important to highlight again: The themes and challenges can make the bulk of your essay question. The essay question may be the theme or challenge. You’ve been warned. 2014 is a prime example.

So…if it was your essay question, then you don’t really get a whole heap of scope to decide when you’ll strategically drop a theme or challenge. The entire thing is a theme or challenge. But, that doesn’t mean you can’t incorporate more themes and challenges than the one asked in the essay question.

In my opinion, the easiest theme or challenge to incorporate is the issue of compliance and non-compliance. It is literally a single word to embed in a sentence. Here’s an example:

“The sentencing procedure in the criminal justice system aims to appropriately punish individuals who have shown non-compliance to the legal system.”

You don’t need to identify that this is a theme or challenge – the markers will know the key words and it will show that you’re using the correct terminology, the sophistication of your essay, and also your conscious studying to include the themes and challenges.

If you’re looking for some help with your legal essays, then why not check out our free essay marking thread?

If you’re just confused about a section of the syllabus, or you’ve got a burning question, then you’ll be pleased to know that we have a legal studies question thread!

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Anti-collusion: NeurIPS does not tolerate any collusion whereby authors secretly cooperate with reviewers, ACs or SACs to obtain favorable reviews. 

Author responses:   Authors will have one week to view and respond to initial reviews. Author responses may not contain any identifying information that may violate the double-blind reviewing policy. Authors may not submit revisions of their paper or supplemental material, but may post their responses as a discussion in OpenReview. This is to reduce the burden on authors to have to revise their paper in a rush during the short rebuttal period.

After the initial response period, authors will be able to respond to any further reviewer/AC questions and comments by posting on the submission’s forum page. The program chairs reserve the right to solicit additional reviews after the initial author response period.  These reviews will become visible to the authors as they are added to OpenReview, and authors will have a chance to respond to them.

After the notification deadline, accepted and opted-in rejected papers will be made public and open for non-anonymous public commenting. Their anonymous reviews, meta-reviews, author responses and reviewer responses will also be made public. Authors of rejected papers will have two weeks after the notification deadline to opt in to make their deanonymized rejected papers public in OpenReview.  These papers are not counted as NeurIPS publications and will be shown as rejected in OpenReview.

Publication of accepted submissions:   Reviews, meta-reviews, and any discussion with the authors will be made public for accepted papers (but reviewer, area chair, and senior area chair identities will remain anonymous). Camera-ready papers will be due in advance of the conference. All camera-ready papers must include a funding disclosure . We strongly encourage accompanying code and data to be submitted with accepted papers when appropriate, as per the code submission policy . Authors will be allowed to make minor changes for a short period of time after the conference.

Contemporaneous Work: For the purpose of the reviewing process, papers that appeared online within two months of a submission will generally be considered "contemporaneous" in the sense that the submission will not be rejected on the basis of the comparison to contemporaneous work. Authors are still expected to cite and discuss contemporaneous work and perform empirical comparisons to the degree feasible. Any paper that influenced the submission is considered prior work and must be cited and discussed as such. Submissions that are very similar to contemporaneous work will undergo additional scrutiny to prevent cases of plagiarism and missing credit to prior work.

Plagiarism is prohibited by the NeurIPS Code of Conduct .

Other Tracks: Similarly to earlier years, we will host multiple tracks, such as datasets, competitions, tutorials as well as workshops, in addition to the main track for which this call for papers is intended. See the conference homepage for updates and calls for participation in these tracks. 

Experiments: As in past years, the program chairs will be measuring the quality and effectiveness of the review process via randomized controlled experiments. All experiments are independently reviewed and approved by an Institutional Review Board (IRB).

Financial Aid: Each paper may designate up to one (1) NeurIPS.cc account email address of a corresponding student author who confirms that they would need the support to attend the conference, and agrees to volunteer if they get selected. To be considered for Financial the student will also need to fill out the Financial Aid application when it becomes available.

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Russian Court Directory

The moscow commercial court.

Address: 17 Bolshaya Tulskaya St., Moscow, Russia, 115191

Site: http://www.msk.arbitr.ru/

Chairman - Oleg Sviridenko

Russia’s Federal Constitutional Law On Commercial Courts in the Russian Federation and Arbitration Procedure Code, which presently determine the system, composition and structure of commercial courts and the form of their activities, were adopted in 1995.

The commercial court network operates based on Article 127 of the Constitution and Article 4 (3) of the Federal Constitutional Law On Judicial System.

Under Article 36 of the Federal Constitutional Law On Commercial Courts No. 1 - FKZ on the Judicial System, dated April 28, 1995, the Moscow Commercial Court:

- handles cases which are under the jurisdiction of Russia’s commercial courts excluding cases under the jurisdiction of the Supreme Commercial Court as a original jurisdiction court;

- revises upon the discovery of new facts judicial acts that have been adopted by the court and entered into effect;

- addresses the Constitutional Court, requesting the examination of the validity of a law applied or subject to application in a case considered in any instance;

- studies and summarizes judicial practice;

- develops proposals on improving laws and other legal acts;

- analyzes judicial statistics.