{"title":"Anthology of Administrative Discretion","authors":"D. I. Zaitsev","doi":"10.17803/2311-5998.2024.117.5.118-124","DOIUrl":null,"url":null,"abstract":"The article analyzes scientific works that had a significant influence on the genesis and evolution of the theory of administrative discretion: “The Spirit of Law” by Charles Montesquieu (1748), “Introduction to the Study of the Law of the Constitution” by Albert Dicey (1885) and “Public Administration and the Public Interest” by E. Pendleton Herring (1936). It is shown that initially administrative discretion was understood as reasonable (rational) activity of executive authorities and their officials, then administrative discretion began to be opposed to law as such, and recently it is increasingly interpreted as creative activity of the government in the framework of anticipatory discretionary regulation. Special attention is paid to the continuity and expansion of the above ideas, their development in the concepts of other researchers, including modern ones, as well as their criticism. The conclusion is made that these ideas should be taken into account in the formationof the Russian theory of administrative discretion.","PeriodicalId":508920,"journal":{"name":"Courier of Kutafin Moscow State Law University (MSAL))","volume":" 67","pages":""},"PeriodicalIF":0.0000,"publicationDate":"2024-07-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":"0","resultStr":null,"platform":"Semanticscholar","paperid":null,"PeriodicalName":"Courier of Kutafin Moscow State Law University (MSAL))","FirstCategoryId":"1085","ListUrlMain":"https://doi.org/10.17803/2311-5998.2024.117.5.118-124","RegionNum":0,"RegionCategory":null,"ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":null,"EPubDate":"","PubModel":"","JCR":"","JCRName":"","Score":null,"Total":0}
引用次数: 0
Abstract
The article analyzes scientific works that had a significant influence on the genesis and evolution of the theory of administrative discretion: “The Spirit of Law” by Charles Montesquieu (1748), “Introduction to the Study of the Law of the Constitution” by Albert Dicey (1885) and “Public Administration and the Public Interest” by E. Pendleton Herring (1936). It is shown that initially administrative discretion was understood as reasonable (rational) activity of executive authorities and their officials, then administrative discretion began to be opposed to law as such, and recently it is increasingly interpreted as creative activity of the government in the framework of anticipatory discretionary regulation. Special attention is paid to the continuity and expansion of the above ideas, their development in the concepts of other researchers, including modern ones, as well as their criticism. The conclusion is made that these ideas should be taken into account in the formationof the Russian theory of administrative discretion.
文章分析了对行政裁量权理论的起源和演变产生重大影响的科学著作:Charles Montesquieu 的 "The Spirit of Law"(1748 年)、Albert Dicey 的 "Introduction to the Study of the Law of the Constitution"(1885 年)和 E. Pendleton Herring 的 "Public Administration and the Public Interest"(1936 年)。研究表明,行政自由裁量权最初被理解为行政机关及其官员的合理(理性)活动,后来行政自由裁量权开始与法律本身相对立,最近则越来越多地被解释为政府在预期自由裁量监管框架内的创造性活动。本文特别关注了上述观点的延续性和扩展性、它们在其他研究者(包括现代研究者)的概念中的发展以及对它们的批评。结论是,在俄罗斯行政裁量权理论的形成过程中应考虑到这些观点。