Administrative Discretion Research Articles

Peculiarities of the interpretation of evaluative concepts in administrative proceedings: analysis of doctrinal approaches

The author of the article attempts to determine, through the lens of doctrinal approaches, the peculiarities of interpreting evaluative concepts in administrative proceedings. It is emphasized that the relevance of this study is driven by the need for a deeper theoretical understanding of doctrinal approaches to the interpretation of evaluative concepts in administrative adjudication. A doctrinal analysis of concepts such as “justification,” “discretion,” “admissibility of evidence,” and “proportionality” is of significant importance for the formation of stable judicial practice and the enhancement of legal certainty. The study underscores that the significance of this research also lies in the fact that administrative courts exercise control over the activities of state authorities, ensuring adherence to the principles of legality and justice. Consequently, the proper understanding and consistent application of evaluative concepts will contribute to the effective protection of citizens’ rights, the transparency of judicial proceedings, and the strengthening of public trust in the judiciary. The analysis of doctrinal approaches in this context allows for an exploration of various methodological foundations used in the interpretation of such concepts and facilitates their systematization in both academic and judicial practice. It is highlighted that, while generally supporting the views of the scholars cited in the article regarding the issues of interpreting evaluative concepts in administrative proceedings and the solutions proposed by some of them, the author asserts that any normative standardization of the interpretation of evaluative concepts, the establishment of unified approaches to their application, and other similar measures will in no way contribute to resolving the problems associated with their proper and effective interpretation. It is emphasized that legislative regulation of such matters contradicts the legal nature of evaluative concepts, whose essence primarily lies in ensuring that, in any given dispute, the court exercising the discretionary powers granted through administrative discretion is able to facilitate not only the protection of individual rights and freedoms but also their effective realization.

An Enquiry Concerning Administrative Discretion in Indigenous Consultations

Statutory legislation endows a government agency with administrative discretion in structuring evidence exchanges in Indigenous consultations over resource projects. Those projects are contentious issues, and evidence shall be evaluated impartially on both sides to make a balanced decision. In ordering the evidence submissions and evaluations, an agency imposes mandatory requirements that burden the reasoning capacity of Indigenous arguers to challenge a project. The diminished reasoning capacity to disagree makes it easy for an agency to produce motivated responses toward outstanding concerns. The article aims not to challenge the validity of administrative discretion but to reveal how burdens originating from statutory discretion can be a “legal source” of authoritative criticism and fallacious reasoning in a state-led adjudication.

Administrative Law and the Regulation of Informal Sector Enterprises in Uganda

This research explores the role of administrative law in regulating Uganda's informal sector, which plays a crucial role in employment and economic inclusivity. Despite its significance, the sector faces numerous challenges, including difficulties in formal registration, inconsistent enforcement of regulations, and limited monitoring. These barriers prevent many informal businesses from transitioning to the formal economy, restricting their potential for growth and access to essential services. The study examines the regulatory framework governing the informal sector, focusing on initiatives aimed at simplifying processes such as business registration, tax compliance, and licensing. It emphasizes the importance of legal recognition and protection for informal businesses, which enables access to financial services, social security, and intellectual property rights. However, issues like administrative discretion, corruption, and inconsistent enforcement by regulatory authorities hinder the sector’s development and create an unequal playing field for informal entrepreneurs. Additionally, the research investigates how administrative law contributes to financial inclusion, facilitating access to microfinance, mobile money, and banking services for informal businesses. By improving financial inclusion, administrative reforms can help integrate informal enterprises into the formal economy. Through case studies, the research highlights both successful and unsuccessful regulatory efforts, providing key insights into the challenges faced and the lessons learned which are essential for shaping future reforms that support sustainable economic growth in Uganda.

Directions for improving the regulatory framework for the use of discretionary powers by law enforcement agencies in administrative legal relations

The article notes that limiting the discretionary powers of law enforcement agencies through the implementation of legislative provisions which would detail and set the limits for the application of these powers is seen as one of the primary tasks for these institutions to comply with the rule of law and is considered to be the main leitmotif of the process of improving the regulatory framework for the use of discretionary powers by law enforcement agencies in administrative legal relations. The emphasis is placed on the fact that recently, in the activities of law enforcement agencies, including administrative law enforcement, there have been such negative trends as concealment of offences, corruption, bribery, and dishonest behaviour of officials. Such a situation, which is the result of sometimes unlimited use of discretionary powers by these entities, creates a huge public outcry, reduces the level of public confidence in the law enforcement system of the State as a whole, and destabilises society, which is especially dangerous in wartime. It is noted that the primary task in the process of solving the described problems and minimising the adverse effects of decisions made by law enforcement officials in the course of administrative discretion is to develop a targeted legislative policy aimed at optimising the limits of discretionary powers by establishing the necessary legal framework for their exercise. It is also emphasised that in order to implement these initiatives, it is necessary to increase the effectiveness of measures to improve the rulemaking technique, i.e., the set of technical and legal means, methods, techniques and methods by which a draft legal act is created. The paper proposes that when developing and adopting new acts, it is mandatory to introduce the most complete and accurate definition of the terms (concepts) used, especially those involving the use of discretionary powers. It is concluded that it is advisable to provide for the level of bodies (officials) which are granted the relevant discretionary powers in the regulations.

Discretion leads to corruption in Indonesian Public Service Agency Hospitals: Governance challenges and control mechanisms

This study examines the relationship between the abuse of discretion and corruption in regional public service agency (PSA) hospitals in Indonesia, focusing on five specific cases. The objective is to raise awareness among stakeholders about how discretion can facilitate corruption, which can have serious legal consequences. The study uses qualitative secondary data analysis, including statutory regulations, court decisions, and academic literature, to explore the effects of the reinventing government concept on hospital management. This concept grants PSA hospitals autonomy in managing their revenues and expenditures, bypassing traditional bureaucratic procedures to improve healthcare quality. However, this financial management flexibility has also increased opportunities for corruption, including fund misappropriation, procurement collusion, and unauthorized resource allocation. Using Klitgaard’s corruption equation, the study reveals that while increased discretion offers benefits, existing oversight mechanisms are insufficient. The study concludes that to reduce corruption risks, it is crucial to enhance accountability through more robust internal controls, local government oversight, and external auditing. These measures align discretion with good governance principles and legal frameworks. This study provides novel insights into the link between administrative discretion and corruption in the public health sector, highlighting the need for comprehensive control systems in PSA hospitals to balance autonomy with accountability.

Административное усмотрение — не «свое мнение», а правовое решение!

The article examines administrative discretion as an integral element of the system of legal relations and the mechanism of legal regulation. Discretion is a legal institution designed to eradicate from law enforcement practice the dominance (independence, uniqueness) of “one’s own opinion” as a fundamental approach when employees of public authorities (officials) make administrative acts and other management decisions. Established legal norms, legal orders, rules, “strong” legal relations, administrative procedures must certainly and effectively influence the mechanism for developing management acts. Discretion and its limits must correspond to modern legal understanding, the ideology of the rule of law and the fundamental principles of the rule of law. Discretion is allowed, which is based on an in-depth analysis of the legal norm, a full weighing of the formulated legal positions, knowledge of different opinions on the use of the legal and correct way to apply a specific legal regulation. It is necessary to guarantee the adequacy of the applied legal means, legal approaches and procedures to the peculiarities of the regulation of relations in the field of public administration and the legal disputes to be resolved.

Equality, Self-determination, Administrative Discretion: Lessons from the Implementation of Jordan Principles in Two Provinces

Canada has an obligation to implement Jordan’s Principle in a way that achieves both substantive equality and self-determination. Both these principles require an approach that centres the full participation of First Nations, supports the development and provision of services tailored to culture and context, and enables differentiation across families and Nations. Canada’s implementation of Jordan’s Principle has relied so heavily on federal employees’ use of administrative discretion that it has side-stepped the resource-intensive requirements of self-determination and substantive equality. Some use of administrative discretion is necessary to accommodate the diverse needs and context addressed by Jordan’s Principle. However, excessive reliance on administrative discretion reproduces pre-existing, colonial power relations. Implementation of Jordan’s Principle in keeping with the principles of self-determination and substantive equality requires: remedying the known gaps in existing policies and funding models that are being addressed through Jordan’s Principle; providing First Nations with timely access to meaningful information about what can be funded through Jordan’s Principle; ensuring that Jordan’s Principle funding is extended on timelines and at levels that allow First Nations to take on responsibilities in tandem with their self-determined priorities; and ensuring First Nations’ involvement in all levels of Jordan’s Principle decision-making. Le Canada a l'obligation de mettre en œuvre le principe de Jordan de manière à réaliser à la fois l'égalité réelle et l'autodétermination. Ces deux principes requièrent une approche qui privilégie la pleine participation des Premières Nations, soutient le développement et la prestation de services adaptés à la culture et au contexte, et permet la différenciation entre les familles et les nations. La mise en œuvre du principe de Jordan par le Canada s'est tellement appuyée sur l'utilisation du pouvoir discrétionnaire des fonctionnaires fédéraux qu'elle a éludé les exigences d'autodétermination et d'égalité réelle, qui nécessitent beaucoup de ressources. Un certain recours au pouvoir discrétionnaire de l'administration est nécessaire pour répondre aux divers besoins et contextes visés par le principe de Jordan. Cependant, un recours excessif au pouvoir discrétionnaire administratif reproduit les relations de pouvoir coloniales préexistantes. La mise en œuvre du principe de Jordan dans le respect des principes d'autodétermination et d'égalité réelle exige de : combler les lacunes connues dans les politiques et les modèles de financement existants qui sont abordés dans le cadre du principe de Jordan ; fournir aux Premières Nations un accès opportun à des informations pertinentes sur ce qui peut être financé dans le cadre du principe de Jordan ; veiller à ce que le financement du principe de Jordan soit étendu dans des délais et à des niveaux qui permettent aux Premières Nations d'assumer des responsabilités en tandem avec leurs priorités autodéterminées ; et assurer la participation des Premières Nations à tous les niveaux de la prise de décision dans le cadre du principe de Jordan.

Political accountability and social equity in public budgeting: Examining the role of local institutions

AbstractThis paper examines how local institutions in U.S. municipalities can affect budget allocations for socially disadvantaged groups, specifically focusing on eight key institutions related to electoral rules, power dynamics, and bureaucratic authority. Additionally, we develop a composite index to assess the overall level of (de)politicization within the local institutional framework. Theoretically, local institutions can shape public officials’ political accountability and administrative discretion during policy processes, thereby influencing their decision‐making on budget allocations. Empirical analyses primarily use data from ICMA's multiround national surveys and employ the historical background of municipalities as an instrumental variable (IV) to address potential endogeneity problems associated with local institutions. We find that local institutions that strengthen politicians’ political accountability to citizens lead to greater budget allocations for redistributive social welfare, thereby fostering social equity in public budgeting. Conversely, the institutions that enhance the authority of senior bureaucrats negatively affect budget allocations for redistributive social welfare.

Административное усмотрение: нормативная правовая полноценность в контексте дискуссии об административных процедурах

The article considers administrative discretion as a legal means that complements and guarantees the legality of law enforcement activities carried out on the basis of general principles of law. Discretion can become the most important and indispensable legal institution for increasing the efficiency of public administration in the case of proper legal regulation of administrative procedures. The issues discussed in the article actualize the idea of adopting the federal law “On Administrative Procedures” in the country, where, among the most important management categories, it is advisable to establish the concept and legal regime of enforcement discretion.

A Critical Analysis on Constitutional Remedies in Administrative Actions in India.

This research delves into the flaws within the Indian administrative actions with helps of administrative law and Constitutional remedies through judicial supremacy of judicial review system pertaining to the administrative actions and propose potentials reforms for improvements. Given the intricate bureaucracy and evolving regulatory landscape of the Indian administrative framework, a robust and efficient mechanism for judicial oversight becomes imperative. Delays in adjudication, limited access to justice, inconsistent review standards, and the imperative for heightened transparency and accountability are some of the flaws that have been identified. Actually, the problem of administrative action is very complex. It is correctly said that absolutely corrupts absolutely. It leads to arbitrariness in many situations. So, in India the Art.14 which the significant one of the Fundamental Rights guaranteed to Indian citizens and is also considered to be the beauty of the Indian Constitution acts as a major check to this arbitrariness arising due to administrative discretion of bias, affirmative action and etc. The study aims comprehensively comprehend existing shortcomings through a meticulous analysis of these challenges. Proposed reforms encompass procedural improvements, legislative modifications and judicial interventions. Evaluation is conducted to ascertain the viability of specialised administrative tribunals, alternative dispute resolution mechanisms and standardized review criteria for stream lining the judicial review process. Additionally, the research explores the role of technology in expediting adjudication and promoting transparency. In alignment with the international standards, the study acknowledges the significance of public participation in administrative decision-making and the assimilation of global best practices. Emphasis is placed on maintaining alternative efficiency while ensuring an effective review process. The research illuminates the intricate interplay between judicial activism and restraint, illustrating how diverse philosophies impact the extent of court exercised review powers. By critically examining these reforms, the study seeks to contribute vital insights to the ongoing discourse on augmenting the judicial review.

Artificial Intelligence and Administrative Discretion: Exploring Adaptations and Boundaries

Abstract This paper explores the necessary adaptations to the theory of administrative discretion when using AI systems. Regulatory frameworks in the EU, US, and Spain do not prohibit the application of AI in discretionary decision-making. Particularly, AI systems can be used when discretionary power involves correlations. However, to meet Rule of Law conditions, it is essential to establish adaptations and boundaries in areas such as duty of care, reason-giving, and judicial review. These conditions should focus on the impact of decisions on the affected individuals.

Foreign experience of administrative and legal regulation of discretionary powers in the branch of land relations

The article collects and analyzes approaches to understanding and conditions of application and implementation of discretionary powers of local self-government bodies in the sphere of land relations of foreign states. The realities of modern life require public authorities not only to timely and fully fulfill their tasks, but also to comply with high standards of integrity. The described tasks and goals are especially important in the implementation of discretionary rights and duties that can be carried out with a certain freedom of action or at all - at their own discretion. The scientific novelty of the study is that this study in the context of the application of administrative discretion of representative and executive bodies of local self-government is carried out for the first time and can be the basis for reviewing the content of national legislation on these issues and significantly influence the development of legal policy on these issues. The author analyzes the existing normative legal acts that are used by municipalities in different states to exercise their administrative functions at their own discretion on this issue. The study concerns both general approaches to understanding administrative discretion, which often takes place through the adoption of legislation on administrative procedure (their principles, legal certainty and purpose), and the options for their application to the sphere of land relations. The article describes the legal regulation of these phenomena in countries such as Italy, Spain, Germany, Austria, USA, France, Great Britain, Norway, Albania, Finland, Bulgaria, establishes patterns, trends and common features of legal regulation, speaks of successful practices, successful experience and prospects for its adoption into the national legal system. The author focuses on the trends in the development of administrative discretion and the importance of digitalization, openness, dialogue and public participation in resolving issues of land relations and concludes on the state of legal certainty of powers, which can be exercised at the discretion of municipalities only by describing the general requirements for the behavior of the latter, to a lesser or greater extent limits the freedom of their operation by law and always grants the right to interested persons to challenge decisions made that affect the sphere of their interests.

Job Satisfaction of Career Service Providers in Qatar

Job satisfaction has a great influence on the performance of organizations. It enhances the employees’ engagement and commitment towards their organization. Therefore, this research focuses on the job satisfaction of career service providers (CSPs) in Qatar. This field played a crucial role in facilitating successful career outcomes for individuals. This study mainly focuses on salary, job facilities, job security, work environment, administrative discretion, and community appreciation to assess the level of job satisfaction in career service providers. A quantitative research approach was used to collect data from 300 career service providers in Qatar. A structured questionnaire was designed and SPSS used to analyze the data statistically. The findings suggest that Qatari employees generally express high satisfaction with human resource practices, skill development, and overall well-being. However, the research identifies areas such as professional development opportunities, workplace culture, and cultural nuances that require more in-depth exploration. The study concludes by emphasizing the need to develop contextually relevant strategies for improving job satisfaction, retention, and career progression for CSPs in Qatar. The findings of the study inform organizational development and human resource practices to enhance the overall effectiveness of career services in the unique cultural context of Qatar.

Information and Communication Technology Adoption, Administrative Discretion, and Innovative Mindsets in Public Organizations

This article examines how information and communication technology (ICT) adoption and administrative discretion are associated with the innovative mindsets of public employees in South Korea. Employing moderated multiple regression analysis, the authors examined secondary survey data on South Korean public employees’ perceptions collected by the Korea Institute of Public Administration in 2021. The findings support a direct and positive impact of ICT adoption and administrative discretion on the innovative mindsets of public employees. Moreover, the results highlight the moderating influence of (perceptual) administrative discretion on the relationship between ICT adoption and innovative mindsets of public employees. The authors discuss the theoretical and practical implications of the findings and contributions of this study.

Implementation of the international convention on the removal of wrecks: Legal obligations, model selections, and perspectives from China

Implementation of the international convention on the removal of wrecks: Legal obligations, model selections, and perspectives from China

The impact of weather on the racial composition of traffic stop and citation issuance in the United States

ABSTRACT We analyze how adverse weather influences the racial composition of traffic stops and the issuance of citations within the context of administrative discretion. The behavior of police officers and drivers may be affected by weather, leading to a change in the composition of stopped drivers. If changes in racial composition are due to police officers choosing to forego traffic stops because those are more costly in wet conditions, it could indicate racial bias. Based on data from 37 city and 11 state police departments, our analysis reveals that the racial composition of drivers stopped and the probability of a citation being issued are not independent of adverse weather conditions, especially for state agencies. These findings contribute to the existing literature on factors influencing police–citizen interactions and provide a foundation for investigating the potential connections among weather, administrative discretion, and racial bias.

Neo-constitutional theory of administrative discretion

This study has as its object the administrative discretion in the light of the premises of neo-constitutionalism. It distinguishes the legalist theory, in which the source of discretion is the legislation, from the neo-constitutionalist theory, in which the source is the Law, globally considered. It dissociates legislative reference from discretion. It examines the subject in the light of the formal principles’ theory. It studies the various aspects of the subject, including the difference between legislative and administrative discretion, technical discretion, the lack of jurisdictional discretion, administrative restrictions on discretion, the vices inherent to discretion, the control of discretion and discretionary extinction.

Cookin’ the Books: How Waitlist Management Biases Data Production in Built for Zero Communities

Built for Zero (BFZ) is a new data-driven approach to allocating housing assistance to homeless households. BFZ implementation includes the production/maintenance of a “by-name list” (BNL). The BNL is a regularly updated spreadsheet with personalised data about everyone who enters and exits a local homeless system (i.e., flow). Local administrators use the BNL to produce “by-name data” (BND). BND lets administrators monitor and manipulate system flow in “real time.” Scholars have not analysed how administrators manage their BNL and produce BND. This paper starts that conservation by answering three questions with interview data that was collected from administrators at 28 “BFZ communities” (i.e., homeless systems implementing BFZ): How do administrators manage their BNL? What factors influence BNL management? How does BNL management affect BND accuracy? Using thematic analysis, the author provides evidence that administrators manage the length of their BNL by removing “inactive” clients who have disengaged from service providers. Administrators try to verify housing status before deeming someone inactive. The verification process is shaped by social policies, network ties, virtual interactions, and administrative discretion. Because those things vary across homeless systems, administrators face different constraints and enablers whilst verifying someone’s housing status. The intersection of contextual factors and subjective processes biases the BND administrators produce from their BNL.

Digitalisation of Administrative Discretion Legal Risks and Responses

In the context of the construction of a digital rule of law government, the digitisation of administrative penalties has been widely used in law enforcement practice, enhancing the efficiency and objectivity of administrative penalties. However, there are certain legal risks associated with digitised discretion: the algorithmic black box contradicts the principle of administrative openness, the procedural rights of the administrative relative are ignored, justice in individual cases is sometimes difficult to be achieved as well as the definition of the responsible subject is vague. For this reason, the risk-building programme should be improved through the construction of a transparency mechanism and a dynamic adjustment mechanism, the improvement of administrative procedures, and the clarification of the subject of responsibilityr.

Anthology of Administrative Discretion

The article analyzes scientific works that had a significant influence on the genesis and evolution of the theory of administrative discretion: “The Spirit of Law” by Charles Montesquieu (1748), “Introduction to the Study of the Law of the Constitution” by Albert Dicey (1885) and “Public Administration and the Public Interest” by E. Pendleton Herring (1936). It is shown that initially administrative discretion was understood as reasonable (rational) activity of executive authorities and their officials, then administrative discretion began to be opposed to law as such, and recently it is increasingly interpreted as creative activity of the government in the framework of anticipatory discretionary regulation. Special attention is paid to the continuity and expansion of the above ideas, their development in the concepts of other researchers, including modern ones, as well as their criticism. The conclusion is made that these ideas should be taken into account in the formationof the Russian theory of administrative discretion.