Genealogy of Administrative Discretion

The article analyzes the interaction between administrative discretion and the main social regulators – religion, ethics and law. It is shown that historically discretion arises as a religious institution, consisting in the trust of public authorities and their officials in prophets – people who are able to contact with the divine forces. The procedure of discretio spirituum, used in the Middle Ages to determine whether a person is a prophet or a false prophet, is described separately. The significance of this procedure is expressed in the partial secularization of discretion, that is, the assumption by church authorities that the divine injunctions can be interpreted, supplemented, or ignored not only by God, but also by the aforementioned persons (prophets). This recognizes that discretion can be both negative (negative) and positive (positive); that the amounts of discretion granted to prophets must be in direct proportion to the degree of trust in them; and that there are specific criteria according to which to establish what amounts of discretion will be granted to prophets. After many centuries, this concept of administrative discretion has remained virtually unchanged. Ethical science reproduces it almost literally: it again refers to the trust, which this time is granted to executive authorities and their officials, as well as to the degree of such trust, which determines the scope of discretionary powers and is determined by certain criteria. Legal science borrows the above theory less explicitly, but its echoes can be detected there as well. In particular, according to one of the concepts of law understanding the law embodies a distrust (degree of distrust) between the people, and since the law and discretion are usually opposed to each other, discretion is again defined as trust (degree of trust). In the conclusion the conclusion is made about the special relevance of this approach to the administrative discretion because since 2020 the trust is a constitutional category.

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