Discretionary Lawmaking and Administrative Law Enforcement

The article examines discretion as both a managerial and procedural principle that constitutes one of the key elements of the system of legal relations inherent in a state governed by the rule of law. Discretion is not limited, as is often assumed, to a mental operation performed by a public administrator or lawenforcement official when choosing one of the options permitted by legal norms. Rather, it is a fundamental principle that permeates the entire system of public administration and law enforcement in a rule-of-law state and forms an indispensable component of professional administrative, administrative-jurisdictional, and judicial activity. In conditions of regulatory incompleteness and heightened dynamism—particularly evident in extraordinary situations (pandemics, wildfire hazards threatening entire regions, large-scale terrorist acts, responses to military threats, climate-related disasters, etc.)—governance through absolutely precise normative prescriptions becomes impossible. Under such circumstances, discretion is an essential part of the mechanism that ensures flexibility and effectiveness of public administration. Various forms of this principle may be identified: from the use of discretionary powers when choosing between equivalent alternatives to the duty to give reasons for judicial and administrative decisions and to interpret norms containing evaluative concepts. The role of discretion is particularly significant in imposing administrative penalties and disciplinary sanctions and in emergency rule-making. It is important to recognize that discretion is not equivalent to arbitrariness; it is based on the duty of officials to adopt well-reasoned, rational, and fair decisions strictly within the framework of the law and constitutional principles. The Authors advocate recognising discretion as both an administrative-procedural and inter-branch principle, which may contribute to further systematisation of law-enforcement practice and to strengthening guarantees for the protection of citizens’ rights against abuses of power.

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