Administrative Discretion: Questions and Answers (Part 3)

Abstract

This article completes a series of three scientific publications planned by the Editorial Board of the Siberian Law Review, the Authors of which discuss the problem of administrative discretion, which is very relevant for Russian administrative legal theory and legal practice, in a question-answer format. Contrary to the opinion justified by Petr P. Serkov in the previous article about the impossibility of a fruitful study of administrative discretion without referring to the “analytical potential of the mechanism of administrative legal relations”, Yuri P. Solovey gives arguments indicating the unsuitability of this “logical structure” for studying legal realities. From his point of view, the use of this artificial and meaningless concept, without a doubt, is a violation of the well-known methodological principle “Occam’s Razor”: one should not multiply things unnecessarily. In this regard, PetrP. Serkov was asked two questions: firstly, could he conduct, within the framework of this article, an indicative analysis of a specific discretionary administrative act using the “logical structure of the mechanism of administrative legal relations”, which would make it possible to draw a conclusion about the legality (illegality ) of such an act, and, secondly, what is its relation to the principles of administrative procedures as legal means of control over administrative discretion and the need for their extensive legislative consolidation. Anticipating the answers to the questions posed, Petr P. Serkov critically analyzes the arguments of “discretionary disagreement” of the specified Author. It is concluded that the phenomenon of administrative discretion covers any managerial decision made by any official of state executive bodies and local governments in the exercise of any of the powers assigned to him. Such a vision of administrative discretion implies a significant adjustment of the method of its research, the priorities of which should be a person, his consciousness and psyche. Concerning the first of the questions asked, Petr P. Serkov, using the “analytical potential of the mechanism of legal relations”, analyzes a hypothetical situation in which a police officer performs a discretionary administrative action by stopping a vehicle. The Author argues that the named “potential” clarifies not only what administrative discretion is, but also how it is formed and what it is intended for. Answering the second question, Petr P. Serkov notes that the procedural legal regulation of the activities of state executive bodies will certainly bring positive effects to the phenomenon of administrative discretion, but it is not clear to what extent the principles of administrative procedures are able to prevent illegal administrative discretion. It should be taken into account that scientific controversy regarding the understanding of legal principles has been going on for decades without the prospect of reaching a doctrinal consensus. In general, the discussion of the essence of administrative discretion shows, according to Petr P. Serkov, the imperfection of the current state and the conceptual vulnerability of the methodology of conducting scientific research and scientific controversy.