Discretion is objectionable because with it comes uncertainty. Good government requires certainty. Certainty of outcome allows individuals to fully command their own destinies. It allows individuals to plan their lives and businesses to plan their work. Moreover, indignity weighs upon anyone who is subject to an official wielding discretion. This holds true regardless of the justice of the official’s ultimate decision. The mere fact that one man’s fate is being decided by another is galling. The aggrieved party feels he has been arbitrarily punished, while the favored party feels beholden to the grace of the official—both equally degrading experiences.
When a law grants an official discretion to decide the rights of other people on the basis of ‘justness in all the circumstances’, the rule of law is replaced by the rule of man. Experience shows that men wielding discretionary power are inclined to be partisan and capricious. By contrast, men wielding commercial power have this tendency almost completely tamed by their need to make a profit. This is because everyone subject to their power can choose not to deal with them; employees can resign, customers can go elsewhere, suppliers can cut them off. Thus they must put aside their tyrannical impulses because if they do not, they will go out of business. However, if government is arbitrary, the only escape is to leave the country.
