The paper delves into legal mechanisms that shape the discretionary powers of public authorities in relation to the existing conflict of a demand for freedom of discretion for effective administration and the risk of its abuse. The author examines discretion in law-making (legislation, judicial and administrative rule-making) and law enforcement (individual and tacit acts, public law contracts) practices. The paper focuses on specific forms of discretion, including judicial control over discretion legality and delegation of powers. The paper identifies and analyzes constitutional principles limiting discretion authorities (legal certainty, proportionality, maintaining individuals’ trust in the law and public authorities, and consistent legal regulation). The analysis of case law identifies the criteria of the legality of discretionary decisions and actions (reasonableness, necessity, and legitimate purpose). The study was based on the works of Russian constitutional and administrative law scholars. The methods included dialectic, formal legal, and comparative legal approaches, allowing to consider the development of discretion and the relationship between their form and content. The author concludes that discretion as a requisite of responsibility requires institutionalization, which implies formalization of its types, procedures, and scope as a necessary condition for preventing abuse, ensuring a balance between private and public interests, and increasing the performance of public administration.
Elena A. Radzhabova (Mon,) studied this question.