Contours of Discretion and Arbitrariness in Law: Conceptual Distinctions and Typologies

This article maps the conceptual contours of discretion and arbitrariness in law, highlighting their precise distinction and the conditions that separate legitimate discretionary action from impermissible arbitrariness. Discretion is characterized as reasoned, justified on objective factors, and accountable decision-making within legal boundaries, whereas arbitrariness arises when decisions lack justification, rational coherence, or adherence to legal principles. Drawing on Hart’s legal philosophy, legal dogmatics, and case law, the study identifies the elements that sustain lawful discretion and prevent arbitrariness. Furthermore, it introduces a typology of arbitrariness, distinguishing procedural and substantial arbitrariness.