A Roundtable Exchange (with Simon Young and Amanda Whitford et al) (HKLJ)

“Discretion in the Legal System: A Roundtable Exchange (with Simon Young and Amanda  Whitfort et al)“
Trevor Wan
Hong Kong Law Journal, Vol. 56, Part 1 of 2026, pp.9 – 20

    Discretion is an unavoidable feature in any functional legal system. Cognitive limitations, due in no small part to the heterogeneity and unpredictability of earthly circumstances, prevent both the common law judge and the legislator from developing a comprehensive, military-grade operational manual standardising responses to every conceivable contingency. While some scholars and jurists regard discretion as a virtue, others bemoan it as a vice, a source of arbitrariness or inconsistency. Nevertheless, across the debate there is broad agreement on one point: discretion must be subject to some forms of meaningful control. In Stradling v Morgan, the Court of Exchequer said that the intention of the legislature is always taken according to what is consonant to reason and good discretion. In Scott v Scott, Lord Shaw of Dunfermline said that “[t]o remit the maintenance of constitutional right to the region of judicial discretion is to shift the foundations of freedom from the rock to the sand”. That goes to the heart of what the United States Supreme Court referred to in Marbury v Madison as “a government of laws and not of men”…