Discretion in Law Enforcement: Rule of Law or Rule of Men?
This essay examines the role of discretion in law enforcement, arguing that discretion is an intrinsic and necessary component of the rule of law rather than a departure from it. Drawing on scholarship by Kleinig, Sherman, and Banks, the paper considers three main supports for police discretion: the value of experiential judgment, the implicit public and legislative consent granted to competent officers, and the inherent complexity of human nature and circumstance. The essay concludes that laws cannot be applied mechanically without regard for context, and that discretion — exercised by competent officers — is essential to preserving the spirit, not merely the letter, of the law.
- Introduction: The Central Question of Police Discretion: Frames discretion as rule of law versus rule of men
- Experience as a Foundation for Discretionary Judgment: Officer experience validates discretionary judgment
- Public Consent and Legislative Approval of Police Discretion: Public and law implicitly sanction competent discretion
- Human Complexity and the Necessity of Discretion: Human variability demands discretion to uphold law's spirit
- Conclusion: Discretion is essential to protecting people
✍️ How to write this paper — guide, tools & examples ▾
What makes this paper effective
- The essay opens with a sharp framing question — discretion as "rule of men" versus an essential dimension of the rule of law — that anchors the entire argument and gives the reader a clear intellectual stakes.
- Each body paragraph introduces a distinct line of evidence (experience, consent, human complexity) and ties it back to the central claim, keeping the argument focused despite its brevity.
- The paper skillfully turns a source that appears to oppose its thesis (Sherman's advocacy for scientific evidence) into supporting evidence, demonstrating how to use concessions strategically.
Key academic technique demonstrated
The paper demonstrates effective use of direct quotation with analysis. Rather than letting quotations stand alone, the writer follows each one with an explicit interpretive sentence explaining what the quotation proves and how it connects to the thesis. This technique — quote, then analyze — is a core skill in academic writing at any level.
Structure breakdown
The essay follows a classic five-part structure: an introduction posing the central question and stating the thesis; three body paragraphs each developing one argument (experience, consent, and human complexity); and a brief conclusion restating the thesis with a normative claim about the purpose of law. The structure is lean and transparent, making it a useful model for short argumentative essays.
Introduction: The Central Question of Police Discretion
There are a number of important considerations one must take into account when examining the use and effect of discretion in police work. The fundamental question surrounding the place of discretion in law enforcement is this: does the exercise of discretion signify a return to "the rule of men (and, now, women)"? Or is it, rather, an important dimension of the rule of law? (Kleinig, 2008, p. 72). A prudent examination of the most significant factors related to this issue finds unequivocally that all processes of law establishment and enforcement contain innate requirements of discretion — requirements necessary to preserve the spirit in which such laws were conceived.
Experience as a Foundation for Discretionary Judgment
One of the most convincing forms of evidence that discretion is an intrinsic part of the rule of law is the role that experience plays in police work. Experience gained from working with people and situations in everyday affairs is often a police officer's most valuable means of understanding and defusing a confrontational situation. Even an article by Lawrence Sherman, which advocates the use of scientific evidence to displace police discretion, readily concedes that experience is an essential part of police work. As Sherman writes, "experience is the best teacher and helps to give excellent judgment… Experience is the foundation of empiricism… as a source of truth in the world" (Sherman, 2008, p. 62). This concession demonstrates that police officers are right to rely on experience when exercising discretion in encounters with civilians, and it further solidifies the fact that police discretion is an integral part of law enforcement.
Public Consent and Legislative Approval of Police Discretion
It is also important to understand that there are both implicit and explicit measures of approval for police officers to exercise discretion and judgment when dealing with members of the public. Both in the written legislation that police officers follow and in the general expectations of the communities that rely on them, the notion exists that officers will use discretion when working in the field. As Kleinig argues, "we give our consent to the police acting on their own discretion with respect to certain of their activities only because we believe that those making discretionary decisions are competent to make them" (Kleinig, 2008, p. 88). Crucially, this passage emphasizes the importance of competency in the exercise of discretion. Police officers should only be hired and retained if they are competent. It is precisely the requirement of competency that distinguishes "the rule of men" from the legitimate, rule-of-law dimension that police discretion properly entails (Kleinig, 2008, p. 72). For a broader discussion of how ethical frameworks apply to criminal justice, see the Wikipedia overview of criminal justice ethics.
Conclusion
Discretion is an integral, implicit part of law enforcement. Situations will always arise that significantly affect the culpability of someone who transgresses the law, and police officers are required to exercise discretion in order to preserve the spirit of the law — which is, ultimately, always to protect people.
References
Banks, C. (2013). Criminal Justice Ethics (3rd ed.). Thousand Oaks, CA: Sage Publications.
Kleinig, J. (2008). Ethics and Criminal Justice: An Introduction. Cambridge, UK: Cambridge University Press.
Sherman, L. W. (1984). Experiments in police discretion: Scientific boon or dangerous knowledge? Law and Contemporary Problems, 47(4), 61–81.
Create your account
Always verify citation format against your institution’s current style guide requirements.