Неопределенность права и усмотрение правоприменителя как ограничители использования централизованных методов регулирования
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 or legal standards and value judgments), the incompletion or contradictoriness of a law, the discretionary selection of significant facts and discretionary qualifications of specific cases, legal dysfunction, contradiction between the objectives of a law and the results of its application, inevitable exceptions to rules, and indeterminate principles for the interpretation of law and for filling legal gaps.
The reasons for the use of administrative discretion include more extensive state regulation, wider use of redistribution, changes in the nature of tasks to be addressed in public administration and higher standards for their implementation, more sophisticated decision-making technology, the need for law-applying entities to have better knowledge in various specialist fields and a more prominent role of specialists, limited resources, and the incrementalist style of decision-making.