Discretion — in plain language

Plain language

the power to make a choice based on judgment and circumstances rather than following strict rules

• judgment call
• decision-making authority
• personal choice
• power to decide

What to watch for

• Translating 'discretion' as 'choice' or 'option' misses the key point that it's a legal authority granted by law or contract, not just any personal preference.
• The phrase 'sole discretion' is often misunderstood as meaning 'no oversight' — in reality, discretionary decisions can still be reviewed for abuse or legal error.
• Non-lawyers often think 'discretion' means 'arbitrary' — but legal discretion must still follow legal standards and can be overturned if abused.
• In contracts, 'discretion' often comes with implied duties (like acting in good faith) that plain-language translations should preserve.

Why This Term Is Hard to Translate. "Discretion" sounds like it means "being careful" or "keeping quiet," but in legal contexts it means having the legal authority to decide. The key is that it's not just any choice — it's a choice that the law specifically allows someone to make based on their judgment.

What to Watch For.

• "Sole discretion" means one party has the decision-making power alone, but this doesn't mean they can act arbitrarily — their decision must still be reasonable and within legal bounds.
• Implied duties often accompany discretionary authority. Even when someone has discretion, they usually must act in good faith and for legitimate purposes.
• Review standards vary — some discretionary decisions can be overturned if they're "abused" or "unreasonable," while others get more deference.

Common Misunderstandings by Non-Lawyers.

• "'Discretion' means they can do whatever they want." (Wrong — discretionary decisions must still follow legal standards and can be reviewed for abuse.)
• "If someone has discretion, no one can question their decision." (Wrong — courts can review whether the discretion was exercised properly.)
• "'Discretion' is the same as 'arbitrary.'" (Wrong — discretion involves judgment and reasoning; arbitrary decisions lack both.)

Legal definition

The power to make a decision based on judgment and the specific circumstances of a situation, rather than following strict rules or formulas. When someone has discretion, they can weigh the facts and choose what seems fair or appropriate, as long as they stay within legal boundaries.

Meanings by context

judicial context: The judge can decide what's fair in this particular case, as long as it follows the law.

administrative context: The agency can decide each case based on its own facts instead of applying the same rule to everyone.

prosecutorial context: The prosecutor can choose how to handle each case based on the evidence and circumstances.

judicial discretion: The judge can decide what's appropriate for this specific case, as long as it follows legal guidelines.

administrative discretion: The agency can make exceptions or interpret rules differently depending on each situation.

prosecutorial discretion: The prosecutor can choose whether to pursue charges and what kind, based on the facts of each case.

Examples

Where you'll see it

• contracts and agreements
• court decisions and rulings
• administrative agency actions
• criminal prosecution decisions
• sentencing guidelines

Related terms

• judgment
• arbitrary
• abuse of discretion
• standard of review
• de novo

Word details

Pronunciation

dih-SKREESH-un

Part of speech

noun

Origin

Latin — from 'discretus' — separated, distinct, capable of discernment

Domains

contract law, administrative law, criminal law, family law, constitutional law

Frequency

very common

Formality

high