In the modern world, when the legal freedom of subjects of legal activity significantly expands, it increases the role of its resources, which belong to the subjective side of its characteristics, i.e., projecting its subjective principles. One of the crucial resources is the legal activities of discretionary powers of legal entities that express freedom to act as they see it. The rule of law is of a general nature. This means that it is applied not in a particular case or circumstance, but in one or another type of cases and circumstances. The rule of law is the basic rules of human behavior. The general nature of the legal standard means that first – it does not lose its effect after a single application; it is permanent. Second – the general nature of the rule means the personal vagueness of its recipients. If the first characteristic describes the functional aspect of the rule of law, the latter implies, rather, its lack than an advantage. The vagueness of personal rule of law implies the need for a certain play option, discretion, without which it is impossible to specify the rate and apply it. This is described in the administrative and legal science under the term of discretionary power or administrative discretion. This is the power to make a choice between courses of conduct in the administration of duty or office.
It should be noted that in the case when excessive demands are interfaced with a possibility of bureaucratic discretion, corruption is much more difficult to detect.
A process itself, where a police officer may have discretionary powers includes four stages:
- crime suppression;
- investigation before arrest;
- registration of an arrested and police investigation after his/her arrest.
Activities at these stages have an administrative nature. Indeed, a preliminary investigation in the United States is the police prerogative. It has the following features:
- It is basically conducted by the police. Attorneys in the United States may also carry out an investigation, but only in certain cases.
- This activity includes reconnaissance and searches operations, with the use of special agents and informants, as well as other special funds necessary to identify potential criminals.
- A police investigation is conducted according to departmental regulations and non-procedural norms. At the same time, there are a number of criminal procedural restrictions on some police action.
- To start an investigation one does not need any factual basis or formal act of the institution of proceedings.
At this stage, only findings and carriers of evidentiary information will be subsequently submitted to the court. Therefore police officers do not make protocols and write reports. This information will content only evidence at the court hearing. Crime suppression and investigation before arrest are carried out using the following activities: crime scene investigation, seizure and research objects, and documents, personal observation, survey, searches (premises, terrain, car interiors), covert surveillance, the use of special services, interception of communications and other means of communication.
The next stage of the investigation is an arrest. The law implies arrest as taking a person into custody in order to charge him/her with a crime. This usually includes the exercise of physical control by a police officer in order to bring the suspect to the police station and register him/her as a perpetrator. However, an arrested is not transported to the police station. Immediate detention is to be set by a decision of the court in case if the offense committed is a felony. To arrest someone an officer must have reasonable grounds to believe that a crime has taken place and the person is the offender. When there is no need for an immediate arrest of the suspect an officer may first get a court order (the so-called arrest warrant), which is issued by a magistrate on reasonable grounds. However, officers act without a warrant in the majority of cases of felony. An officer may arrest a suspect as soon as he/she has reasonable grounds. Such an arrest is called a warrantless arrest. Simultaneously with the arrest the officer has the right to inspect the arrested, his/her car, personal stuff to discover any weapons, contraband or traces of the crime.
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Meanwhile, determined as positive law, discretion is organically woven into the content of the law. It is the basis of the discretionary power of the subjects of legal activities and it serves as a means of self-determination in the legal field. The specified character of a connection between the right of discretion and legal activities determines the legal aspect of this research. This aspect is updated in the light of serious contradictions arising from discretionary trends in legal action. An example is a contradiction between the social significance of the legal nature and the inadequacy of its use in the exercise of discretionary power. The value of discretionary power is that its implementation depends on the dynamics and different nature of the legal trends. Discretionary powers are playing a pivotal role in relation to both legal activity and its outcomes. In other words, discretionary powers are the source of not only positive but also negative trends in discretionary legal activities of entities that are ultimately reflected in the adequacy of the legal action. Evidence of this is in private law and public practice of the discretionary powers. There are plenty of examples of it. This is the realization of discretionary power in big politics.
These examples reflect the controversy regarding the discretionary nature of bias in socially significant discretionary powers of legal entities. In this regard, the study of the nature and content of discretionary power, as a resource for legal work, allows posing the question of its relevance and optimization in the context of different aspects, including the context of prospective or retrospective responsibility for its implementation. In this aspect, it acquires a special meaning and can claim the status of research as a matter of a general theoretical analysis. One of the first tasks of this analysis leads to consideration of discretionary power as a resource for legal activity, since the latter is mediated by the implementation of discretionary powers.
In an encyclopedic dictionary, discretionary power is interpreted in a narrow aspect of formal the authority of officials. Discretionary activities are allocated by the government, along with others, which is one of the conditions for the implementation of discretionary power. In such a way, the mere discretion is not limited to the authority, as it is seen as a means of power and its momentous resource. In connection with it, this power is treated as a discretionary power. Therefore, the judgment is not the same discretionary power, which is important from a methodological point of view.
Discretionary power, due to its legal conditionality, is an essential resource of functional legal activities, providing the possibility of self-determination in the legal field. The role of discretionary power is manifested in the fact that legal actions are based on the subjective perception of the power and assessment of the circumstances, conditions and actions, which determine the nature and effect of these actions. From this point of view, the discretionary power is the driving force of legal activity.
The study of legal activity in the light of the discretionary power can reveal the mechanism of the underlying factors of legal action. In this case, the question may arise as to why it is expedient to consider the discretion of the subjects of law if the trends in discretionary legal action can be considered from the point of view of the discretion or discretionary powers. First, this aspect is productive in terms of the legal entities possessing the autonomy of will. This is expressed in the freedom of self-determination in the implementation of their tasks in different areas of life. Human rights as a social reality are hard to imagine not only in a state without power but also without the power of an individual. The power of an individual is not less important than his/her rights and freedoms. Moreover, human rights and freedoms take on their own reality through the power of the individual and are alienated from it transforming into formal regulations.
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Second, the government, in terms of its interpretation of a paradigm that integrates in total order, uses the category as a general discretion, the inherent properties of the legal status of the subjects equally characterized not only by officials with discretionary powers but also citizens with discretionary powers.
Third, discretionary power can be productive as a critical resource of legal activity.
Legal action is characterized by the fact that a decision is related to any legal issues, thus, depending on whether it is carried out in a professional manner or not, it can be referred to as professional or non-professional. Discretionary power has a significant impact on both the legal activity and its results. In the context of legal activity, discretionary powers constitute the essence and meaning of optionality as the fateful factor of subjective rights. The initiative of the subjects of the law, their legal options for the behavior or actions depends on their discretionary power. The deal is only possible if the subject signs it. The ability to freely make decisions, to act on your own, to exercise power over others are the main features of the subject of legal activity that have functional significance in the legal system. Such power is sometimes referred to as “judicial authority”, “volitional power”, more accurately defined as a legal authority. In my opinion, based on the method of ascent from the abstract to the concrete, the legal power of subjects of the law is in the form of power of its specific media. Discretionary power is not reducible to the concept of legal power, though stipulated by the law. It is a functional component of the legal authority of the subject, which is crucial in the implementation of the subjective rights of the legal action. In other words, if the legal authority outlines the “fence” to limit possible activities, the discretionary power allows its use in different ways. In this respect, the discretionary power is a resource for the legal authorities.
Concerning the question of the possible practice of police discretion– to do it or not to do it – there is only one answer and this answer is neither “yes” nor “no”. Discretion simply cannot be erased from the nature of the legal activity, like from any other activity. In addition, discretion cannot affect the level of crime and security in society, as it is already regulated by the accepted norms, regulations and laws within which discretion already has its place. The level of discretionary activities will be developed in parallel with the changes in the overall legal system. Naturally, it is a holistic system of law enforcement, judicial and other aspects. In turn, the discretion can have any particular ethical problems or discrepancies; however, this is only in the case of certain moral values of a person or group who face the choice of further action. In other words, the ethical tone of discretion cannot be permanent on a conventional scale. Though, there are exact differences in the race questions. In other words, the officers were paying attention to a skin color while deciding who to investigate (Fig. 1).
Thus, the fundamental importance of this type of legal regulation of the semiotic model of norms becomes obvious, that is, an authoritative legal context. After all, the rule of law is objectified not only in the sense of justice but also in legal and official contexts. The inability to talk about pure “ideal type” of this regulation stems from the fact that it is impossible to imagine a system of the laws, individual sectors or institutions, which are built on the basis of discretionary rules that are based solely on the discretion of the public authorities. The type of legal regulation is characterized by quality. This is the dominant prevalence of discretionary methods in legal norms. To conclude, the main characteristics of discretionary power are that it is carried out on the intellectually-willed level. In this context, the problem of optimization of the order of discretionary powers is quite a challenge. However, the identification and assessment of the legal nature of discretionary power are possible.
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