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«Public Administration Issues» Journal,

Post. address:
National Research University
Higher School of Economics
20 Myasnitskaya Str., Moscow 101000, Russian Federation
Location address:
of. 307, 4/2, Slavyanskaya sq., Moscow 109074, Russian Federation

Tel./fax: 7 (495) 772-95-90, ext. 12631

E-mail: vgmu@hse.ru 

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32nd place in the SCIENCE INDEX
for 2019 (more than 4000 journals)
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two-year impact factor for 2019: 2,631
(the citation of all sources)

Russian Science Citation Index
five-year impact factor for 2019: 1,725

Ten-year h-index 2019: 31

 

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Research and educational journal
Published quarterly since 2007
ISSN 1999-5431
E-ISSN 2409-5095

Andrey Kashanin 1,2
  • 1 National Research University Higher School of Economics, 20 Myasnitskaya Str., Moscow, 101000, Russian Federation
  • 2 Ph.D., Deputy Director of the Institute for Legal Studies, HSE

Legal indeterminacy and judicial discretion as limitations on the centralized methods of regulation

2013. No. 4. P. 19–36 [issue contents]
This article aims to identify some factors of legal regulation that put limits on the use of centralized methods in law and, in a broader sense, in social governance, primarily factors that inevitably produce legal indeterminacy and make a law-applying entity act at its discretion.

The article is based on a hypothesis that putting a safety hedge around the deductive model of law application with the unawareness of legal indeterminacy and the need for discretionary action on the part of a law-applying entity results in this subject being ousted from the theory of legal reasoning and legal theory in general, primarily in Russian legal discourse.

This has direct practical effects as it hides the availability for a law-applying entity of more than one option for a decision on a specific case and consequently relieves it of the need to publicly explain the motives for its choice. For this reason, any attempt to sustain the illusion that a specific decision in the application of law is deductible from law will have the opposite effect, namely enlargement of discretionary powers, inconsistent and arbitrary judicial and administrative practices, and a less significant role of social governance mechanisms that are based on general rules.

Consequently, any attempt to give a paramount role to centralized regulatory methods in government will have internal limitations that stem from such intrinsic indeterminacy.

The article also purports to systematize arguments underlying the thesis of inevitable indeterminacy and partial autonomy of a law-applying entity in taking decisions regardless of what a law stipulates.
The article analyzes factors such as the linguistic indeterminacy of stipulation, the deliberate ambiguity of a specific law (e.g. the use of "bendable" rules, legal standards, or value judgments), the incompletion or inconsistancy of a law, the discretionary selection of significant facts and discretionary qualifications of specific cases, legal disfunction, contradiction between the objectives of a law and the results of its application, inevitable exceptions from the rules, and indeterminate principles for the interpretation of law and for filling legal gaps.

The reasons for the use of the administrative discretion include a more extensive state regulation, a wider use of redistribution, changes in the nature of tasks to be addressed to public administration and higher standards for their implementation, more sophisticated decisionmaking technology, the need for law-applying entities to have better knowledge in various specialist fields of law and a more prominent role of specialists, limited resources, and the incremental style of decision-making.
Citation: (2013) Neopredelennost' prava i usmotrenie pravoprimenitelYa kak ogranichiteli ispol'zovaniYa tsentralizovannykh metodov regulirovaniYa [Legal indeterminacy and judicial discretion as limitations on the centralized methods of regulation] Public Administration Issues, no 4, pp. 19-36 (in Russian)
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ISSN 1999-5431
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