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Friday, March 29, 2024

Reticence about discretion

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My friends and I checked in at Naia 3 yesterday morning.  In my hand-carried bag was a bottle of scent that bore the mark 125 ml. When it passed through the scanning device at the pre-departure area, I was told that I could not take it along and that I had a choice of either checking it in with the rest of my baggage or surrendering it to them. The first option was a nuisance. I had caused all my luggage shrouded in protective plastic, fully aware of the shabby treatment they receive at the hands of baggage handlers. Getting the bottle of scent it would have meant undoing the whole pack.  The second was equally repulsive, because the item was by no means cheap! I argued that although the bottle did say that it was 125 ml, because I had used up much of it already, the contents certainly weighed less than 100 ml even, but all my logic was for naught. 

The only answer I was given was scripted by Pilate: “What is written is written.” I was telling my friends that the purpose of the restriction was to prevent passengers from using prodigious amounts of alcohol or scent, or perfume to daze the flight crew, and so there was little point in insisting that the prohibition was “bottle-based” rather than “content-based.”  Surely, this was a matter over which discretion could have been properly used to be reasonable.  But there was—and is, in our legal and administrative systems—reticence about discretion.

And the reason is not too difficult to fathom: Discretion has been frequently abused, as antibiotics have been abused without any sensible person urging that we refrain from taking antibiotics when the malady calls for their prescription.  The trouble with discretion is that it is the opposite of the mechanical application of formularies. “Dura lex sed lex” is a good principle, but it should never be the excuse for non-cogitation.  The law should be presumed to intend what is reasonable, because it is not worthy of human beings to hold them to what violates that which is most characteristic of us—thought and reason.  And it certainly sets off alarm bells when we no longer trust ourselves to be reasonable.  When books, tables, templates take the place of discretion even when they should not, then there is occurring an eclipse of reason that is reason enough to beat gongs, set firecrackers of and raise a ruckus to frighten away the dragon of stupidity that threatens to devour reasonability!

The fact, as David, an American authority on administrative law , points out, is that most of administrative action is discretionary, what he calls “particular justice.”  And that might sound like an oxymoron for if justice were just, would it not be true to all?  One needs discretion, however, for a rather straightforward reason: No matter the perspicacity and the foresight of a legislator, there is no way he can see the myriad constellation of facts to which the law is to be applied.  And so the demands of justice, the ideal of fairness, in every particular situation can be met or at least approximated in the measure that the judge or the arbiter is open to a host of facts and circumstances, modifiers and qualifiers that may not only produce a nuanced disposition but one markedly divergent from what is found on the printed page.  A policeman who stops a motorcycle rider who does not have his helmet on has discretion whether or not to issue a violation ticket, and if he chooses not to, it should not be presumed that he was bribed.  Unfortunately, we have a penchant for thinking the worst of others.  

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Rather, his effort at balancing equities, weighing circumstances and understanding the purposes of penal provisions make him deserving of accolade.

I nearly surrendered my rather expensive bottle of cologne to the airport authorities who seemed to have abdicated the use of all reason in favor of a blue book to which they clung with the fervor the same fervor as bible-toting fundamentalists.  And that is what terrifies me most.  As the world becomes more complex and facts are seldom simple, it takes discernment, reason and a studied consideration of circumstances to arrive at conclusions that are fair.  We have to be able to trust reason again, and because it seems like we do not, we keep talking, with disturbing excitement, if not anticipation, about robots and machines that can think better than we can! 

It is this latter possibility that is disgusting—and, quite frankly, just absurd!

rannie_aquino@csu.edu.ph

rannie_aquino@sanbeda.edu.ph

rannie_aquino@outlook.com

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