Discretio Est Discernere Per Legem Quid Sit Justum

Discretio Est Discernere Per Legem Quid Sit Justum

Literal Meaning

Discretion is the selection of that which is just by the law.

Explanation & Origin

Origin – This maxim of law has a Latin origin.

Explanation – Discretion is to discern through law what is just. Discretion in legal practice means the equitable decision of what is just and proper under the circumstances. It is the power of a judge, in certain matters, to decide in accordance with his own judgment of the equities for the cases, unhampered by inflexible rules of law. The latitude allowed to judges as to the action to be taken on certain facts.

This is true scope of exercise of jurisdiction in relation to the matters of jurisdiction. The court would amplify its jurisdiction to do justice but only where it is so permissible in law and is not beyond the constitutional mandate of specified writ jurisdiction.


There is a species of discretion which is authorised by express law, and without which justice cannot be administered; for example, if an old offender, a man of much intelligence and cunning, whose talents render him dangerous to the community, induces a young man of weak intellect to commit a larceny in company with himself, they are both liable to be punished for the offence. The law, foreseeing such a case, has provided that the punishment should be proportioned so as to do justice, and it has left such apportionment to the discretion of the judge. It is evident that, without such discretion, justice could not be administered; for one of these parties assuredly deserves a much more severe punishment than the other.

In civil, tort cases or class action suits the judge may decide that exemplary damages must be given to the victim. He may decide the amount of money according to his discretion.

Many matters relating to trial, such as order of giving evidence, granting of new trials, etc. are properly left mainly or entirely to the discretion of the judge.

In criminal law, the ability to know and distinguish between good and evil and between what is lawful and what is unlawful.

Case Reference

In Rook’s Case[1], the judge stated, “Discretion when applied to a court of justice, means sound discretion guided by law. It must be governed by rule, not by humour: it must not be arbitrary vague and fanciful, but legal and regular.”[2]

In Sharp v. Wakefield[3], Lord Halsburystated that it must be exercised within the limit, to which an honest man, competent to the discharge of his office ought to confine himself.

It is also prompted by the Supreme Court of Indiain KrishtaGoud and J. Bhoomaiah v. State of Andhra Pradesh & others[4], that “where the public power in a republic is irresponsible or irresponsive or exercised in the manner of absolute arbitrary, law-unto-oneself malafide, if gruesomely established, the Court may not be silent or impotent.

Edited by Vigneshwar Ramasubramania

Approved & Published – Sakshi Raje


[1]5 Rep. 99, 100; 1 W. Bla. 152.

[2] R. v. Wilkes, 2 Burr. 25, 39.

[3](1891), 64, LT Rep 180 (1891) ApCa 173

[4](1976) 1 SCC 157.

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