Essential elements of the definition of administrative discretion

Abstract

This article aims to elucidate important aspects related to the phenomenon of discretion and its intrinsic elements of freedom/autonomy/volition. It discusses these elements’ origins as well as the advantages and disadvantages of granting a margin of freedom/autonomy/volition to state public officials, as they are the main interface between the state’s will and the citizens. In addition, this article aims to include the Public Administration itself in the scope of the study of discretion; after all, it will always be responsible for the actions and activities of its agents. It is the duty of the public administrator, within their scope with elements of subjectivity, to decide and adopt behaviors that enable them to achieve the public interest more effectively, in line with the principles governing the Administration, including the principle of efficiency. Discretion is, due to the complexity of today’s society, a fundamental aspect to implement the public interest in the Administration’s duties; after all, there must always be a rule that guides the agent, but it is certain that in most cases it will not be enough to foresee all possible situations. As a result, the legislator gave the administrative agent the power to decide, in the concrete case, considering the facts and circumstances, what is the path that best suits the public interest. Thus, discretion has a prominent role in all state administrative activity, as will be seen below.

Keywords: discretion, Public Administration, public agent, subjectivity.