Continuing the Discussion on Administrative Discretion

Abstract

The article continues the discussion on the topical issue of administrative discretion for Russian administrative-legal theory and legal practice, organized by the editors of the journal “Siberian Law Review” on the pages of two previous issues of the journal with the participation of P. P. Serkov and Yu. P. Solovey. The Author focuses on the state of the modern domestic doctrine of administrative discretion, the contribution of Russian legal scholars to its development, the need and possibility (including criteria and limits) of delimiting administrative discretion from other types of discretion. It is proved that the Russian jurisprudence demonstrates, contrary to the assertions of some experts, not confusion in the face of the problematic category of discretion, but ontological and methodological certainty, although sometimes reaching extremes. At the same time, there is no single Russian doctrine of discretion, there are many such doctrines, and some scholars have the right to claim that specific doctrines are associated with their names. The Author draws attention to the fact that discretion in general and administrative discretion in particular are interdisciplinary (interscientific) categories, so they must first of all be rid of the semantic and meaningful “layers” of other sciences. The sooner a pure theory of discretion appears, the more mistakes and risks will be insured against by legal science and law enforcement practice. In order to avoid terminological confusion and preserve the subject matter of the study, it is absolutely important to distinguishfour concepts: 1) administrative discretion; 2) judicial control over administrative discretion; 3) judicial discretion; 4) judicial discretion in the exercise of judicial control over administrative discretion. These concepts have a certain connection with each other, however, they designate different (partly even by their branch affiliation) categories, phenomena, processes and institutions. As a conclusion, it is indicated that the motives of each discretionary decision of the public administration must sooner or later (better sooner than later) be made public. To make this a reality, legal science needs to develop and offer effective legal guarantees for ensuring the rights of citizens and their associations when public authorities exercise their discretionary powers.