Discretionary Nihilism: Introduction to the Problem

The article analyses a category new to administrative-law scholarship – discretionary nihilism. Discretionary nihilism is understood as a distortion of the legal consciousness of law-enforcement officials (executive authorities), manifested in a negative attitude toward administrative discretion—both their own and that of other law-enforcement actors – as well as in an intentional full or partial refusal to exercise discretionary powers. The Author identifies the main features of discretionary nihilism. First, it is grounded in a positivist (normativist) conception of law in its most rigid interpretation. Second, it enables executive officials to avoid making non-standard managerial decisions and, consequently, to avoid responsibility for their implementation and outcome. Third, discretionary nihilism is characteristic less of individual than of collective legal consciousness and frequently represents a specific form of so-called departmental solidarity. Turning to practice, the Author cites as an example a situation widely observed in the Russian Federation in the previous decade, where conductors, relying strictly on the letter of the law, removed minors from public transport in circumstances clearly endangering their life or health. Drawing on media reports, numerous such incidents are examined. Measures taken against conductors, relevant judicial practice, and the final legislative resolution of this issue are critically assessed. It is shown that neither the legislator nor law-enforcement authorities were able to find an optimal solution due to discretionary nihilism, which in this case took the form of an unwillingness to confer discretionary powers on conductors. Finally, the article explores the relationship between discretionary nihilism and state sovereignty. The Author argues, in particular, that if persons adhering to discretionary nihilistic views assume high governmental positions during an emergency, the state risks losing its sovereignty irrevocably.

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