Discretion, Dispensation and Mitigation: The Problem of the Individual Special Case 1960 Survey of American Law 35 New York University Law Review 1960

35 N.Y.U. L. Rev. 925 (1960)
Discretion, Dispensation and Mitigation: The Problem of the Individual Special Case

handle is hein.journals/nylr35 and id is 933 raw text is: DISCRETION, DISPENSATION AND MITIGATION:
THE PROBLEM OF THE INDIVIDUAL
SPECIAL CASE
ROSCOE POUND
A S systems of law approach maturity, application of law becomes
a problem. From the first general security, security of life and
limb, and peace and security of the economic order require certainty,
uniformity, and predictability in the operations of the legal order.
But security of the individual life requires equality, a balance of
uniformity and predictability with adaptation to the exigencies of
the individual life. Individualized application, crudely achieved in
the strict law by multiplication of rules, and sometimes overdone in
the stage of equity and natural law, was much urged at the beginning
of the present century, and some features have been brought out by
the neo-realists of today. In Anglo-American law individualization
was brought about by separate courts of equity, by general verdicts of
juries in actions at law, by latitude of interpretation in choice or
ascertainment of a rule, through application of legal standards such as
due care, fair conduct, or good faith in relations of trust and confi-
dence, and through wide discretion of magistrates in petty causes.
Some have urged that courts do, or should, only take legal precepts
for a general guide and endeavor to do justice in the case in hand as
their true task. But separate courts of equity and distinct equity
procedure have been disappearing and some have thought that a
decadence of equity as an equitabilizing device has resulted or is
threatened.
Difficulties have been urged because of logical conflict between
dispensation and mitigation, on the one hand, and the principle of
equality before the law, on the other hand. But a principle, if estab-
lished by a legal precept, is not therefore a rule. It is a starting point
for reasoning in arriving at a determination, not a fixed prescribing of
an exact result.
If the general security, the security of acquisitions, and security
of transactions seem threatened by discretion, dispensation, and mitiga-
tion, on the other hand the social interest in the individual life-self-
assertion, opportunity, and conditions of life-may be unduly impaired
by foreclosing all margin of application of rules. Looked at from a
general science of law, the effective individualizing agency in the
administration of justice is discretion. Dispensation and mitigation
require discretion in determining when and how to employ them.
Although an important group of neo-analytical jurists still think

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