Which is better: legal discretion or automatic enforcement?

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[Dylan]

I think the somewhat messy combo we have now is pretty solid. I mean, we've gotten bad results from it here in the States but some good ones too.

Pros: more common sense / practical result more of the time. Allows prevailing norms to play into law that is sometimes decades or centuries old. Permits flexibility in times of need.

Cons: less predictable. Allows prevailing norms to effect fundamental and important law (see, e.g., fascist Germany, modern-day Venezuela). Permits flexibility in times of duress/crisis.

[exploited]

[Saz]

[Dylan]

[Dylan]

[exploited]

[Saz]

The law would be even less predictable if you had absolutely mandatory punishments for every illegal act, because then people and governments would just come up with ever more absurd reasons their illegal acts were in fact legal. A discretion regime allows them to admit that yes, this act may have breached the law, but I did it because of X reason, and I have the political support to justify why X is a valid reason.

They both result in the exact same outcome but one is more transparent and provides the public with a justification.

[exploited]

[Saz]