Administrative Discretionary

Abstract

The administrative discretionary act differs from regulated act because while the latter refers to the simple execution of the law, the former refers to cases where there is some leeway for a further understanding and application of the rule. For example, discretionary is necessary when the law can provide two possible proceedings, none of which is mandatory. It is also necessary when legislation merely indicates its ends, without specifying the means to achieve them. When it is not dissociated from the exercise of the discretion of a constituted authority, discretionary is the opposite of arbitrariness. After defining this important notion, this paper emphasizes two highlights of it, namely, that the foundation of its power lies in the law itself, and that the distinguishing feature of a discretionary act is the justification of the reasons for the decision.