Discretionary Powers in the Legal Order

D. J. Galligan

in Discretionary Powers

Published in print May 1990 | ISBN: 9780198256526
Published online March 2012 | e-ISBN: 9780191681653 | DOI:

Series: Clarendon Paperbacks

Discretionary Powers in the Legal Order

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Now that various senses of discretion have been considered and a standard case suggested, the next task is to consider the relationship between discretionary powers and ideas about law and legal systems. Such an undertaking is of interest in its own right, but it has a special importance because of the belief that discretionary powers are in some ways incompatible with notions of law. If legality connotes a system of authority centred around general and stable rules guiding citizens in their actions and enforceable in the courts, then discretionary powers may seem in various ways to be anathema to the very idea. This chapter examines that relationship. It begins by considering how discretionary powers fit into a descriptive account of law. It then moves to a particular conception of legal authority based around the ideals of the rule of law. This is referred to as the private law model. The chapter shows how discretionary powers depart from this model, and an attempt is made by considering the social background to explain the prevalence of discretion, and why it does not fit easily into the private law model. This leads to the formulation of an alternative public law model which takes fuller account of the significance of discretionary powers. Finally, different approaches to the development of legal principles regulating discretion are considered.

Keywords: discretionary power; legal authority; rule of law; private law model; public law model

Chapter.  22284 words. 

Subjects: Human Rights and Immigration

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