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date: 31 October 2020

Abstract and Keywords

This chapter focuses on the contemporary uses of discretion in the criminal process. It begins by identifying and categorizing manifestations of discretionary decision-making as part of criminal justice systems or the criminal process, with particular reference to the actors involved, stage of process, source, and operation of discretion. Attention then turns to criminal law doctrine and the application of substantive criminal law, giving consideration to the relationship between substantive law and procedural law. It also examines the empirical and normative rationales behind the use of discretion and how and why discretion has become a fundamental element of the criminal process. Finally, the chapter looks at the question of legitimacy and the implications of discretion for our understanding of justice and the rule of law.

Keywords: discretion, criminal process, criminal justice, criminal law, procedural law, legitimacy, rule of law, substantive law

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