A matter of discretion

Discretion is not only the assessment of tact and diplomacy; it is also the expression of choice and option. Both are compelling imperatives in the performance and exactitude of one’s being. Somewhere between the two is the blend of common sense and desire that preserves the best of both. Life is seldom as meticulous as we might first have supposed it to be. Hence the need for discretion. Otherwise we lapse into a world of rashness; viz., “Discretion is the better part of valour!

The phrase is also found in Act V, Scene IV of the Shakespearean play Henry IV, Part 1, spoken by Falstaff to Prince Hal when the latter has mistaken the former for dead. Falstaff, who had been playing dead on the battlefield to avoid being killed, tells Hal, “The better part of valour is discretion; in the which better part I have saved my life.”

Discretion also implies delicacy and judicious behaviour.

The Court of Chancery was a court of equity in England and Wales that followed a set of loose rules to avoid the slow pace of change and possible harshness (or “inequity”) of the common law. The Chancery had jurisdiction over all matters of equity, including trusts, land law, the estates of lunatics and the guardianship of infants (and formerly married women). Its initial role was somewhat different: as an extension of the Lord Chancellor’s role as Keeper of the King’s Conscience, the court was an administrative body primarily concerned with conscientious law. Thus the Court of Chancery had a far greater remit than the common law courts, whose decisions it had the jurisdiction to overrule for much of its existence, and was far more flexible.

In the legal system, discretion is often defined as the ability of a judge to choose where, how and with what severity to sentence a person who has been convicted. A person chooses to utilize his or her options and decides which to use, whether this is a police officer arresting a person on the street (criminal) or evicting someone from an apartment (civil) or anywhere in between. There are some arguments that implementing discretion overrules or weakens the rule of law. However, laws cannot be written without using discretion and therefore the rule of law serves to guide discretion towards societal expectations, norms and, at least in part, public interest.

The matter of discretion frequently arises precipitously. The occasion may be between lovers or friends, business associates or professionals, or when making personal plans or decisions. It is for this reason that acknowledgement of its council is beneficial. The motive of discretion is never precision (or what we sometimes mistakenly identify as universal correctness or “just being right”); it is about circumspection and inclination. It therefore makes no sense to confuse opinion with discretion. They are unrelated.  Relieved of the contamination of personal viewpoint enables us better to embrace the soul of discretion. It may in the process appear to dilute one’s inclination or sensitivity – and indeed it may well do so – but the edict is to avoid being impetuous. And perhaps outright wrong!

Discretion has been called “the Art of suiting the action to particular circumstances” (Lord Scarman). Those in a position of power are most often able to exercise discretion as to how they will apply or exercise that power. The ability to make decisions which represent a responsible choice and for which an understanding of what is lawful, right or wise may be presupposed.

I have found in the conduct of my daily habits it is better to preserve choice which after all is the root of discretion. What better proof of one’s propriety than the maintenance of options many of which are patent alternatives? Obviously neither discretion nor indiscretion is to be confused with capacity or incapacity to make a decision. Not everything requires a resolution.  Indeed there are many instances in which your opinion is far more irrelevant than you might prefer to believe. Rising above what is perceived to be the immediate clarity of life may at times thus afford a greater buoyancy in the end.