Hoffmann & Zontek on H.L.A. Hart and Discretion in Criminal Justice

Joseph L. Hoffmann and Witold Zontek (Indiana University-Bloomington, Maurer School of Law and Katedra Prawa Karnego Uniwersytet Jagielloński /Department of Criminal Law Jagiellonian University) have posted Discretion in Criminal Justice: Reflections Prompted by H.L.A. Hart's "Lost" Essay on SSRN. Here is the abstract:

 

In his so-called “Lost” Essay, H.L.A. Hart asked, “What is discretion?” Hart sought to explain the nature and characteristics of discretion by close examination of several examples of discretion in law and in life, and he suggested further study along the same lines. In this draft article, we take up Hart’s suggestion by examining the role played by discretion in the American and Polish criminal justice systems. The article describes various aspects or stages of the American and Polish criminal justice systems that involve discretion, or something like it, and through analyzing these examples draws some tentative conclusions about the nature and characteristics of discretion in criminal justice.