Discretionary Power of Public Administration

Its Scope and Control

by Leszek Leszczyński (Volume editor) Adam Szot (Volume editor)
©2017 Edited Collection 288 Pages


The book analyzes various aspects and examples of public administration discretionary power within the processes of law application. It presents a variety of factors that may affect the range of discretion as well as the influence on public administration’s reasoning. The authors evaluate the complexity of forms and procedures for control of decision latitude that is exercised by the public administration and the society.

Table Of Contents

  • Cover
  • Title
  • Copyright
  • About the author
  • About the book
  • This eBook can be cited
  • Table of content
  • Introduction
  • Part I
  • Discretionality, Margin of Decision and Administrative Discretionary Authority – an Attempt at Terminological Clarification (Małgorzata Jaśkowska)
  • Administrative Discretion in the Light of Theory of Representative Bureaucracy (Mateusz Stępień)
  • Procedural discretion in public administration (Barbara Adamiak)
  • Abuse of Administrative Discretion (Zbigniew Kmieciak / Joanna Wegner-Kowalska)
  • Part II
  • Discretionary powers of the public administration in law application processes and its judicial control (Adam Szot)
  • The Manifestations of Public Administration’s Discretionary Power in the Control of Administrative Decisions (Zbigniew R. Kmiecik / Eliza Komierzyńska-Orlińska)
  • Intensity of judicial control of discretionary administrative power. Theoretical remarks from a comparative law perspective (Marcin Kamiński)
  • Justification as the limitation of the discretionary power of the administrative judge (Bartosz Wojciechowski / Marek Zirk-Sadowski)
  • The role of judicial opinion in controlling the discretionary power in public administration (Iwona Rzucidło-Grochowska)
  • Part III
  • Statutory interpretation and its role in administrative application of law (Andrzej Korybski)
  • Precedential Practice in the Statutory Legal Order and Its Role in the Judicial Control of Administrative Decisions (Leszek Leszczyński)
  • Communication in Legal Decision-Making and Public Administration Discretionary Power (Anna Kalisz)
  • Mediation in the administrative and administrative court proceedings vs. discretion in the law application process – selected issues (Marzena Myślińska)
  • Some Remarks on Good Law and Good Administration (Wojciech Dziedziak)
  • Part IV
  • European Convention on Human Rights as a decision-making argument in the administrative type of law application (theoretical analysis) (Bartosz Liżewski)
  • Administrative promissory commitment in the perspective of discretionary powers of public administration body (Anna Ostrowska)
  • Discretionary power of public administration and control of public debt (Giovanni Pesce)
  • Stare Decisis and Judicial Review of Public Administration in American Common Law System (John McClellan Marshall)
  • Series index

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I. Public administration in modern states is perceived as an organisation of a special kind which acts on behalf of a state as well as for its sake, but also for units subjected to state powers. Hence, a projection is brought into life of a way in which a society is to function, which is drafted and favoured by a centre of the political power. The activity of public administration is geared towards taking most efficient actions within their legal boundaries and accounting for socio-political conditions.

Activities of public administration organs are being assessed through elaborate control and supervision systems, which frequently builds their vested interest in the content of decisions being made. Simultaneously, processes of administrative decisions occur in situations with potential conflicts of interest.

A legislator provides public administration organs with an appropriate range of competence in order to facilitate best possible fulfilment of their tasks. Additionally, they are granted administrative powers, i.e. a possibility to decide unilaterally about a content of a legal relation between themselves and subjects from outside the administration realm. Imperative forms of administrative actions remain an indispensable element for humans to function within a society organised in a state despite numerous attempts at finding new ways and methods for meeting needs of the society and its members.

A legislator also provides public administration organs with some decision latitude in order to facilitate efficient fulfilment of their tasks and to adjust activities they undertake to individual cases and needs that may change in a dynamic social context. Decision processes feature (or at least may feature) other sources of latitude that do not stem from legislator’s conscious actions, which also contributes to a current depiction of public administration’s decision latitude. Hence, some aspects of this latitude might slip away from legislator’s control. In turn, this adds up to the acute problem of the range of discretionary powers that public administration organs exercise in connection with making individual decisions that may affect citizens’ rights and obligations. Furthermore, the said problem is inextricably connected with limits of such latitude and making sure that these limits are not crossed, and finally with the supralegal context in which public administration functions as well as administration’s vested interest in the content of decisions being made.

II. This publication aims at presenting numerous expressions of public administration’s prerogatives within the processes of law implementation. It is also to ← 9 | 10 → present a complexity of factors that may affect the range of these prerogatives as well as public administration’s reasoning (narrowing or directing its discretion). Finally, the study is to present a complexity of forms and procedures for control of decision latitude that is actually exercised by the public administration (these are defined as internal control maintained by the very administration in addition to external control maintained by independent organs and institutions, including courts of law and other subjects, e.g. the society and its representatives).

Continental legal culture as well as the theory of law and administrative proceedings make the starting point for deliberations by all authors of those papers. Representatives of Polish legal studies (theory of law, administrative law and administrative proceedings) as well as legal practitioners (in particular, judges of administrative courts) have been invited to contribute their relevant research and adjudication experience to this monograph. Furthermore, the team of authors includes representatives of other systems and legal cultures (common law), which has granted some comparative perspective.

The majority of analyses made within respective parts of this monograph are of a universal character (pertaining to the theory of law). Any references to solutions from specific legal systems are merely exemplifications and they constitute some background for discussions of a more general nature.

The monograph is divided into four parts pertaining to various aspects and manifestations of discretionary powers of the public administration. The first part has been devoted to issues of a general nature pertaining to various ways of perceiving and defining the notion of administration’s discretion as well as its boundaries. The next part deals with problems of public administration organs using decisional freedom in the processes of law implementation; it also refers to the range of control over these processes that is exercised by independent courts. The third part is devoted to selected problems of the theory of law which inter alia refer to law interpretation, including the influence of a precedence on shaping administrative decisions in the continental legal culture, processes of communication and mediation, as well as axiological limits of public administration’s discretion. The last part focuses on specific legal problems that occur in various legal systems and cultures.

We are fully aware that the issues referred to in this book that are connected with both theoretical and practical aspects of shaping public administration’s discretionary powers, the way that organs use their decision latitude, and finally the forms and methods for controlling such latitude hardly exhaust the topic and merely form a starting point for further discussions. At the same time, we hope ← 10 | 11 → to receive critical feedback on points made by respective authors, which will contribute to broadening the range of study in this respect.

III. This monograph was created in result of research conducted in the Chair of Theory and Philosophy of Law (Maria Curie-Sklodowska University, Lublin, Poland) and in the framework of research project granted by the Polish National Science Centre [Naro­dowe Centrum Nauki] on the basis of decision No. DEC-2013/11/N/HS5/04212, entitled: “The influence of judicial decisions on the discretionary power of public administration in the law application processes” [“Wpływ orzeczeń sądowych na dyskrecjonalną władzę administracji publicznej w procesach stosowania prawa”].

Academic Editors:

Leszek Leszczyński

Adam Szot ← 11 | 12 →

← 12 | 13 →

Part I

← 13 | 14 →

← 14 | 15 →

Małgorzata Jaśkowska

(Associate Professor, Cardinal Stefan Wyszynski University in Warsaw, Poland; The Supreme Administrative Court of Poland Judge)

Discretionality, Margin of Decision and Administrative Discretionary Authority – an Attempt at Terminological Clarification

Abstract: The article is aimed at systemizing the terminology related to the discretionary power of public authorities, given the scope of the concepts covered by it. It constitutes a proposal of a specific understanding of the concepts of discretionality, margin of decision and administrative discretionary authority.

Keywords: discretionality, margin of decision, administrative discretionary authority

1.  Introduction

In the literature of administrative law the terms discretionality (dyskrecjonalność), discretionary authority (uznanie) or margin of decision (luzy decyzyjne) are frequently used as synonyms, and no regard is given to their internal differentiation1. Other authors, however, assign different meanings to these terms2. A number of causes for the absence of synonymity are given. References are made to the ← 15 | 16 → linguistic understanding of the terms, their etymology or designed purpose, and it is emphasised that some of them have been created for the purposes of the theory of law while others are applied within a given branch of law. This paper is an attempt to elaborate on and substantiate a concept covered by the latter line of argument, whose outline I have presented in my earlier publications3. This is because in my opinion if one applies these terms as carrying different meanings, one will obtain tools useful for attaining varying research objectives, in the area of both the general theory of law and its specific branches, including the science of administrative law. In this way, one also may underscore the similarities and differences between actions of individual types of public authorities, taken in different forms and areas. This is of significance for a review of such actions. The use of a defined term can simultaneously emphasise a range of considerations, effectively preventing many misunderstandings. From the perspective of the science of administrative law, a discipline I represent, and given the scope of review, and in particular the judicial review, it would therefore be desirable to achieve a certain level of terminological cohesion in this regard. This is true because, as Langrod has noted, the role of the judicature and legal science is to standardise certain general terms, which can be used for the purposes of developing their own vocabulary and uniform institutions, especially given that the proprieties of a technique (in our case, administrative law) reinforce the appeal for distinguishing the terms, which are consequences of the genesis, development and purposes of this branch of law4. Such arguments, in turn, support – which I will try to prove below – a given way of understanding the terms I propose.

At the same time, however, since the terms refer to law, I treat them as legal concepts, created within the sphere of the science of administrative law. On the other hand, I do not see a necessity to express the terms in definitions that would be acceptable for the legislator. Such a definition could be needed, but only in respect of administrative discretionary authority, because of the fact that this concept restricts the availability of judicial review and administrative courts ability to decide a case on its merits. Conversely, the other terms, such as discretionality or margin of decision, do not require a legal definition5. Given the above, I treat my approach to the subject principally as a research proposal. ← 16 | 17 →

2.  The notion and scope of discretionality

As a starting point for further discussion, I adopt the legal understanding of the notion of discretionality or, to be more precise, discretionary authority since I apply this notion not to all subjects of law, but only to those equipped with sovereign decision-making powers. Looking from the perspective of the science of administrative law, I am most interested in such forms of discretion that concern public authorities constrained by law but do not apply directly to a recipient of the authorities’ actions, who may do anything that the law does not forbid. This does not mean I underestimate the sphere of the individual’s rights and freedoms but results from the fact that discretionary powers of public authorities can limit the sphere of such rights and freedoms and therefore require to be discussed in a more detailed manner. Furthermore, the notion of discretionality relates to the situation where an issue has been presented to an entity exercising sovereign powers in order to be resolved in a way that is not rigidly determined by provisions of law6. This interpretation of the term is a consequence of a certain genesis and development of law, and has been shaped in the language of law by a number of factors, including Poland’s accession to the EU and the ensuing wider interest in the European law7. The above interpretation differs from the common – and purely linguistic – meaning of the Polish adjective “dyskrecjonalny” that is equivalent to “poufny”, which can be translated into English as “confidential”8.

Considering the above, I assume that discretionality, or more precisely discretionary authority, has a very wide subjective and objective scope as a notion. In the subjective meaning, such authority may be exercised by any subject of the law attributed with a sovereign decision-making power. At the same time, the subjective scope is not only wide but also internally diverse. It extends to executive, judicial and legislative bodies9. Due to their role and constitutional position within a state, the widest extent of discretionary authority is afforded to lawmakers. Still, also this ← 17 | 18 → category is internally diverse. This is because the legislative model of lawmaking differs from the legal and administrative models. As Ziemski and Jędrzejczak emphasise, the lawmaking power of executive bodies is always a derivative of the relevant power of the legislative branch. The executive’s powers to create general and abstractive norms are thus similar to processes of enforcing the law. There are also material differences between the models of issuing individual normative acts10. Consequently, a wide area of discretion is not always a derivative of a body’s rank. This is because a minister who issues an executive regulation has less discretionary authority that a local government body adopting spatial planning acts or local bylaws. However, the legal scholarship in particular emphasises the role of judicial discretionality11. It has been noticed that the application of law by courts affects the former’s characteristics because the judicial autonomy and independence is what differentiates courts from executive bodies. The characteristics of law influences the subject-matter scope of discretionary authority enjoyed by a given body and the body’s relationships with other subjects of law. On the other hand, the role and position of executive bodies is different and depends on a constitutional model, and is shaped by such phenomena as centralisation or decentralisation. At the same time, diverse bodies exercise public administration functions. Since public tasks are being privatised and their performance tends to be linked with certain obligations of public law, a new category of entities has emerged: they are given wide discretionary authority even though they do not perform, as a rule, any functions of public entities. This can be observed, for instance, in entities obliged to perform the duty of granting access to public information under the Access to Public Information Act of 6 September 200112. Pursuant to Article 4 (1) (5) of this Act, the category of entities obliged to disclose public information includes also entities that represent other persons or organisational units which perform public tasks or holding public property, as well as legal persons in which the State Treasury, units of local government and those of business or ← 18 | 19 → professional self-governing organisations have a dominant position within the meaning of competition and consumer protection laws. Paragraph 2 of the said article imposes the obligation to disclose public information on those of labour union organisations and employers’ organisations that are “of a representative character” within the meaning of the Act on the Social Dialogue Council and other institutions of social dialogue of 24 July 201513, and on political parties.

The objective scope of discretionary authority is also wide and internally diverse. The above is true in particular of the sources of such authority. This is due to the fact that understood objectively, discretionary authority relates to any possibility of making a choice, which may be shaped by a range of different factors. This may be the social context of the law, the characteristics of the legal language, features of a given branch of law, nature of the process of application of law, in other words factors independent from the legislator, but also the factors that depend on the legislator such as the manner in which legal rules and normative acts are formulated, development of special structures referring to non-legal criteria or creation of discretionary competences. What matters is thus a defined concept of a policy that governs the creation and application of law as well as the technical and legal measures used14. All those factors affect the object and internal diversification of discretionary authority. Such authority may hence apply to the creation, application, enforcement or review of the law. It may be referred to all branches of law, or only to a selected branch such as administrative law.

At the same time, the objective scope of discretionary authority can be characterised by both internal similarities and differences. Entities exercising such authority take governing and unilateral actions, while the sources and stages of proceedings that serve the purpose of making a proper selection are actually similar. However, certain differences between the making and application of law appear against this background; similarly, there are differences between the judicial model and executive models of applying law (the latter being typical for administrative bodies). This is because the lawmaking process involves an attempt to adopt a general and abstractive norm with a future effect, whereas the application of law aims at resolving an existing dispute or forming individual rights and duties of subjects of the law. For this reason, discretionality of the legislative is extremely wide but also objectively (thematically) diverse. Three aspects of such discretionality are discerned. The first one is freedom to decide whether or not ← 19 | 20 → to issue an act (the making of new laws is optional), known as the lawmaking discretion, which includes an assessment of the purposefulness and necessity of introduction of a new legal regulation. The remaining two are determination of the timeframe for issuing a new regulation and the freedom of determining the substantive content of a legal act15.

On the one hand, courts and administrative bodies also apply the law in a similar way: the decision-maker (a competent state body or other entity authorised by law) determines positive or negative legal consequences of certain facts on the basis of applicable legal norms, in a way that is binding on particular entities16. The process results in an individual and specific norm that determines the recipient’s behaviour by indicating the consequences of the facts of a case17. On the other hand, internal diversity also appears here. This diversity results from the fact that administrative bodies operate in different spheres, both externally, vis-a-vis entities that are not subordinated within an organisational structure, and internally, vis-a-vis subordinated entities and bodies, and this affects the scope of their obligations. Legal basis of an action and a degree of specificity of a legal norm are shaped differently in either of the above spheres18.

The judicial model, on its part, is external as it covers entities that are not subordinated within an organisational structure. Moreover, as a rule courts review only legality, while administrative bodies assess both legality and purposefulness. At the same time administrative bodies do not have the attribute of independence. Because of this, their application of law is substantially influenced by the structural features of administrative law as norms of this law constitute a certain type of a peremptory norm (jus cogens) that determines a duty to take certain actions, and determine – at least generally – the legal situation of subjects of a legal relationship19.

According to Jakimowicz, the differences between discretionality of courts and that of administrative bodies result from the fact that the two types of discretionality rest with different branches of government; because of this, grounds for their ← 20 | 21 → actions and scope of discretion are different, too. In this respect, a model of applying the law and procedural rules are both different20. Ziemski and Jędrzejczak also note this, arguing that despite similarities and a resembling model of application of law, courts have much narrower discretionary authority. This is because courts adjudicate in respect of already existing legal situations while administrative bodies in principle operate with the intention to achieve a future result (in a creative manner)21. In the case of judicial administrative proceedings, additional differences appear in respect of evidentiary proceedings and, as a rule, the cassation-type model of adjudication.


ISBN (Hardcover)
Publication date
2017 (August)
law application legal argumentation rule of law human rights judicial control precedental practice
Frankfurt am Main, Bern, Bruxelles, New York, Oxford, Warszawa, Wien, 2017. 288 pp.

Biographical notes

Leszek Leszczyński (Volume editor) Adam Szot (Volume editor)

Leszek Leszczynski is Professor and Head of Chair of the Theory and Philosophy of Law Department at Maria Curie-Sklodowska University, Lublin. His research interests also include legal interpretation, precedent and axiology of judicial application of the law. Adam Szot received a Ph.D. from the Faculty of Law and Administration at the Maria Curie-Sklodowska University, Lublin. His research interests also include public administration discretion, law application and legal interpretation.


Title: Discretionary Power of Public Administration