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ADMINISTRATIVE DISCRETION
AND THE RULE OF LAW1
BY ALEXANDER H. PEKELIS
i
vjiURRENT
discussionsof the characteristics
of the common law
countriesas contrastedwith thoseof the so-calledcivil law countriesemphasizethe individualisticcharacterof the former.I have
a comparisonbetweentypicalcommonlaw
undertakenelsewhere*
and enforcement
and thosecommonlyused
devicesofinvestigation
in civil law countriesof the Latin type.This comparisondid not
substantiatethe currentopinion. The pivotal importanceforthe
of the Anglo-American
veryfunctioning
legal systemof such institutionsand principlesas contemptofcourt,dutyof disclosureand
the jurysystem,and the lack of commensurateinstitutions
in the
civil law systems,
in
that
the
law
a
common
has
more
indicate, fact,
collectivistcharacterand thatthereis a pronouncedindividualism
in legal institutions
of theLatin type.
thatI have
But thepressureofthecommunity-thecharacteristic
tried to emphasize is much more the pressureof the small communitythanthatof thestate,say,or of thenationas a whole.The
pluricellularstructureof Americansociety,with its wide variety
of different
unions,churches,
typesof communities,fraternities,
and itsdecentralization
notonlymakesforgreater
ofsocialpressure,
but also represents,
or at leastuntilrecentlyreprespecificstrength
a
valve
the
for
sented, safety
systemas a whole.
The presentpaperis concernednotso muchwiththecentrifugal
forcesof social structureas withcertaintypicalmanifestations
of
activity
centripetalforces more precisely,withthe ever-widening
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DISCRETION
23
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SOCIAL RESEARCH
24
It is safeto say thatthe essentialobjectionto the activityof administrative
agenciesis directedagainsttheextremely
greatamount
of discretionwith which theyare entrusted.The administrative
agencydoes notapplyanyfixedrule oflaw: it actsaccordingto considerationsofpolicy- ofreason,ofpublic convenience,ofeconomic
of business fairness,of social
expediency,of national efficiency,
The
fate
of
individuals
progress.
subjectto itsjurisdictiondepends
largelyon the discretionof the men who run the agency;and the
individualis facedwitha governmentby men and not with that
- whichis deemed to
governmentby law- say the critics
represent
theveryessenceof thecommonlaw tradition.
But is thereindeed a violationof this particulartradition?In
what is the actual role of disregardto concretelegal institutions
cretionin the commonlaw system,as comparedwith its role in
the systemsprevailingon the European continent?Is it true that
in common law countriesthe administrationof justice-because
bound bypreciseand specificprecedentsor becausecloselywatched
by public opinion, or forother legal or political reasons-is less
exinfluencedthan in the civil law countriesby "administrative
pediency"? To what extentis governmentby law a specificcommon law traditioninconsistent
withthe growthof administrative
agencies?
and studies
These questionscannot be answeredcategorically,
thatmayfurnisha basisforjudgmenthavenotyetbeen completed.3
But even at the presentstageof analysisit is possible to say that
in common law countriesneeds of public policy,exigenciesof
are taken into account in the ordinary
moralityand efficiency,
administration
of justice to an extentundreamedof on the Euroamount of discretion
pean continent;and thatthe corresponding
law makesof itsenforceinherentin thesystemofAnglo-American
in
civil
law countrieshas been
mentan activitymuchcloserto what
consideredadministrativeadjudication than to what has constitutedadministration
of justiceby theordinarycontinentalcourts.
It is notpossibleto presentherethematerialwhichappearsto sub8See footnote 1.
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DISCRETION
25
stantiatethissomewhatsweepingstatement.But it maybe at least
illustratedby two typicalsituations:one concerningthe fieldof
contracts,the otherthatof crime.
11
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26
SOCIAL
RESEARCH
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DISCRETION
27
cannot escape the slipperyand uncertainground of human discretioninspiredby motivestoo subtleand delicateto be translated
into fixedlegal formulae.Governmentby law? Obviouslynot, if
by that is meant "governmentby the certaintyof law." At best,
governmentby gentlemen.
An elementofdiscretionis, of course,involvedin everypossible
judicial system,and in no countryat any time has justice been
administeredby machinesof logical subsumption,distinguishing
appliance.
rightfromwrongwiththecold precisionofa coin-testing
But the European Rechtsstaatwas plannedand organizedwiththe
verypurposeofreducingthehumanelementin theadministration
ofjusticeto itsimaginableminimum.The remediesforthebreach
- or of the singletypeof contract,such as sales,loans,
of contracts
- are definedbycode. The judge mayexercisea certain
partnership
amountof discretionin holdingthe contractvalid or void. But if
he holds the contractvalid he cannot forany reason denyany of
thecode remedies,norcan he,ifhe holdsitvoid,grantanyofthem.
He cannot discriminatebetween plaintiffand plaintiff,and no
middle-of-the-road
positioncan enable him to proceedto a dosage
of relief.Furthermore,
the judge has no contemptpower in the
fieldof substantivelaw. The typicalremedyconsistsin the award
of damages,but thereis nevera jury in a non-criminalcase, and
thereis nobodyto strikethe delicatebalance betweenthe indefinable incompleteness
ofrightand wrongon thepartof thelitigants.
There are no verdictswhichare renderedwithouta statementof
reasons:thejudge has to writeout his opinion and showthe exact
amountof the plaintiff's
injuryin dollarsand cents.The less discretion,themorejustice.Governmentbylaw,at leastin thecourts,
is theideal upon whichcontinentalinstitutions
werecarefullypatterned.The highestequitywas thoughtto be foundin therigidity
and certainty
of the law.
The commonlaw,on thecontrary,
createsa complicatedmachineryto avertthisrigidity.It calls thismachineryequity,and sometimestriesto distinguishitselffromthislessnoble relative.There
is no chance,though,thatit will rid itselfof its yoke-fellow.
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s>8
SOCIAL RESEARCH
Thou robedman of justice,takethyplace;
of equity,
And thou,his yoke-fellow
Benchby his side.
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DISCRETION
29
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SOCIAL RESEARCH
3O
would probablyreveal its institutionalcharacterin commonlaw
manifestation
of the differcountries.But the most characteristic
ence in the two attitudesmay be seen in the fateof the so-called
positiveschoolof criminallaw.
This school,foundedby Lombroso,Ferri and Garofolo,had a
large followingin all European countriesbut neversucceededin
makingany seriousheadwayin the legislationof thosecountries.
The objectionsoftheEuropeanliberals,moreor lessclearlyarticulated, have been substantiallyfoundedon the contentionthatindividualizationof criminaljustice would affector underminethe
fundamentalprinciplesof punishmentby law: nullum crimenet
nulla poena sine lege. It would reducethe businessof punishment
to a discretionary
althoughscientific
activityofa bodywhichwould
administrative
an
much
more
resemble
agencythana judicial tribunal. Amongthe manysurprisesthatthiscountryholdsfora European lawyer,not the least strikingis that of findingLombroso,
Ferri and Garofolowidely translated,discussedand followedby
as parSuch institutions
legislature,judiciaryand administration.
dreaded
indeterminthe
don, probation,parole and, particularly,
ate sentence,havebynowan unchallengedcitizenshipin theAmerican penal system.
in
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32
SOCIAL RESEARCH
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34
SOCIAL RESEARCH
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DISCRETION
35
IV
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SOCIAL RESEARCH
36
and politicallibertieshave been protectedin the English-speaking
countriesnot less but morethanin our Rechtsstaatcountries,and
thatpeople on the whole are certainlynot less happy therethan
thoseon our sideofthewater.
We beganto ask ourselveswhetherthesuccessof thetotalitarian
partiesin Europe could not be largelyexplainedbyour strictbelief
in the ideal of governmentby law, withwhichwe kept faitheven
when we had controlof administration;whetherthe voluntary
renunciationofanyinvestigation
goingbeyondlegal formulae,the
and prosecution,the reluctance
in enforcement
lack of selectivity
did not deprivethe
to solve legal problemsby moraldistinctions,
and
whetherin our
of
democracies
strength
efficiency;
European
belief in the overwhelmingimportanceof perfectlegislationwe
did not neglectfundamentalsocial problems,such as the positive
political educationof individualsand the creationof an efficient
and remunerationofjudges and administrasystemof recruitment
certainideals we
in
tors;whether, short,forthesake of preserving
we did not make theirverydefenseimpossible.
On the otherhand,shouldwe, forthe necessityof defendingit,
destroythe veryobject of our defense;should we, forthe sake of
life, lose the reasons for living- proptervitam vivendi perdere
causas?Is thisthe finaldeadlockof legal philosophy?Today thisis
muchmorethantheproblemof a Rechtsstaatlawyer'sadjustment
to thecommonlaw background.We have seen in thepluricellular
structureof Americansocietyand governmentone of the safety
valves thatcompensatesthe strengthof social pressure,of which
This
discretionand administrative
powerare but a manifestation.
pluralisticstructurewould probablynot have been possiblein the
countrieswithoutthe Britishsplendid isolation
English-speaking
The isolationand thesecurity
and theAmericantwo-oceansecurity.
externalpressurethe safety
a
new
Under
are rapidlyvanishing.
valveof loose-knitrelationsdisappears;a morecompact,a centralized, a new statelooms.What is the new solutiongoingto be?
In theexerciseofdiscretionary
powerstheAmericanadministrative agencieshave gatheredand,are daily building up mountains
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