DOI: 10.7256/2454-0706.2023.2.39416

Abstract: The article examines the issues of the theory of discretion in law enforcement practice, explores various points of view of scientists regarding the place and role of this legal phenomenon in legal regulation. Due to the lack of unity of opinions of legal scholars, various approaches are analyzed, attention is drawn to the theoretical and practical significance of the study of these issues. Attention is drawn to the importance of constructing a theoretical model of the limits of law enforcement discretion based on the concept, features and classification of limits. The author analyzes the legal limits of the law enforcement discretion contained in regulatory legal acts and evaluates the importance for the effectiveness of legal regulation in terms of the legal certainty of individual legal norms. The main conclusions of the author are that one of the important properties of law is the certainty of legal norms, the absence of such certainty leads to arbitrariness. In legal science, a significant number of approaches have been developed to understand the limits of law enforcement discretion, classifications of the limits of law enforcement discretion that have scientific and practical significance. The attention of scientists to this problem testifies to the complexity and inconsistency of these legal phenomena. There are no clear legal criteria for the principle of fairness, good faith, reasonableness, which allows the law enforcement officer to consider a legal case on the basis of individual ideas about justice or injustice, good faith or bad faith, reasonableness or unreasonableness, which in turn inevitably generates errors and negatively affects economic development.

DOI: 10.7256/2454-0706.2019.10.43280

Abstract: This article reviews the positive and negative approaches towards understanding of discretion in law, as well as substantiates the need for comprehensive analysis of the problems of discretion in law not only in law enforcement, but also lawmaking and law-interpreting practice, depending on the nature of legal activity. The author explores the fundamental approaches of the scholars of jurisprudence towards definition of conceptual characteristics of discretion in law; formulates the original definition of discretion in law and its key attributes; underlines the need for comprehensive study of this legal phenomenon. Having analyzed the positive and negative approaches towards understanding the concept of discretion in law, the author conducts an exhaustive study of the problem of discretion, taking into account the regularities in law enforcement, lawmaking and law-interpreting activity. The author concludes that it is imperative to view discretion in various legal branches, and proposes definition of discretion in law.