Without discretion, can there be equity, justice in law?

Without discretion, can there be equity, justice in law?
Updated 08:44 AM Jun 27, 2012
From Dudley Au
I refer to the letter "Shore up judicial discretion in sentencing" (June 19). There are two considerations in evaluating the exercise of discretion. One is equity.

Take, for example, those under the age of consent, who are seen in law as children, who have yet to attain full cognitive capabilities. They cannot vote or sign any document.
Can consent between two underaged persons to infract the law be regarded as an offence? Can a child be held responsible for his action, say, in consensual sex, in the criminal sense?
The child could be counselled because his action transgresses moral or religious dictates and is injurious if it results in pregnancy.
Or the iron fist of criminal procedure could mean that a criminal record accompanies the child through life, for an infraction of laws that deem a child incapable of signing documents but capable of being treated as an adult for consensual sex.
The example is but one of many involving the law and equity.
Second, there must be congruence between the dictates of the law and its administration. Law theorist John Austin said that every rule is a general command and a person is obliged under a rule whereby he is liable to be hurt should he disobey.
Legal philosopher Herbert Hart disagreed and expounded that, when a community has developed a fundamental secondary rule that stipulates how legal rules are to be identified, the law is born.
This would remove a concern that selective enforcement and sentencing could or would be a contagion in the legal system.
While the doctrine of judicial precedent holds, discretion dictates whether the law, in its application of principles, takes into consideration ameliorative elements essential to justice. Discretion, whose other name is equity, must be evaluated in this light.
URL http://www.todayonline.com/Voices/EDC120627-0000014/Without-discretion,-can-there-be-equity,-justice-in-law
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28June2012: Judges should have more flexibility: MP (n 2 following letters)
A1:
28June2012: Judges should have more flexibility: MP (n 2 following letters)
28June2012: Judges should have more flexibility: MP (n 2 following letters)
28June2012: Judges should have more flexibility: MP (n 2 following letters)