Administrative Discretion: A Comparative Analysis


Marcelo Figuereido

Pontifical Catholic University of São Paulo Law School

Administrative discretion is critical in administrative process. Two foundational principles guiding a democratic government are transparency and accountability. The actions of public authorities therefore are viewed through the prism of rule of law in general and fundamental rights guaranteed in the Constitution in particular.

Administrative discretion is primarily questioned at two levels. The very law granting discretion or the action taken under the law could be challenged. Both these challenges are done at the touchstone of fundamental rights and judiciary is the forum to agitate the claims. This raise two questions for review as to whether the grant and use of discretion are valid? These questions could be bracketed as issues of ‘ultra vires’ and more specifically, ultra vires the constitution. The grant and use of discretion is tested against its consistency with the fundamental rights.

Administrative discretion provides space for creativeness within administrative spheres and in actions of public authorities. Discretion in most cases is conferred by the legislature itself to achieve a designate object.  Having said that, increase of powers is perceived with skepticism as a prescription for arbitrariness. It is where discretion is read with the notions of limits, review and accountability.

The control of the discretionary power encompasses different concepts such as: “contrôle des motifs” (related to the test of the correct interpretation, or whether the fact has been correctly established); unreasonableness test; principle of proportionality; abuse of discretion; due process; improper purpose; irrelevant consideration; and the doctrine of legitimate expectation.

The purpose of this post is to highlight the importance of Administrative law in French legal history and its influence in Latin America.


Since 1872, The Conseild´Etat (CE) passes judgment in its capacity as an independent administrative court.  The challenge ground contrôle de motifs and the unwritten general principles of law (principesgeneraux du droit) are significant.

The grounds for appeal (ouvertures) are the following: – incompetence; vice de forme; détournement de pouvoir; violation de la loi. The last ground, violation de la loi, is a residual category, which includes both the principles généraux du droit and the contrôle des motifs.

The ground “contrôle des motifs” implies (i) an assessment of whether the fact has been correctly established; if held not to have been established correctly, there is erreur de fait; (ii) testing the correct interpretation of legal provisions; if incorrectly interpreted, there is erreur de droit, and (iii) testing the qualification juridique des faits, legal qualification of the facts. Testing the qualification includes both the interpretation of vague legal terms and the exercise of discretionary powers.

In particular as regards the control of the “pouvoir discretionaire“, the marginal testing ground developed by the CE, “erreur manifested´appreciation” (contrôle minimum), is important. In certain cases, the CE employs a more extensive test. For instance, in the area of expropriation, the principle of proportionality plays a role. In order to expropriate, a déclarationd´utilité publique is required.

Because of the expression “excessifs”, this test may be likened to the English unreasonableness test. There is also the cost-benefit balance to be analyzed by the C.E.

Latin America

The countries of Latin America were historically influenced by French law in respect of administrative law, and naturally, by Iberian-Spanish and Portuguese law.

The Spanish Constitution, Article 9.3, in fine, prohibits all public powers from acting arbitrarily. More recently, academic teachings about discretionary actions developed in Germany and Spain has also reached the region.

Because administrative law is provided for by most Latin American constitutions, intense reflexes were seen on the principle of legality, which has greatly expanded, whereas the principle of discretionary action has been significantly reduced. Moreover, constitutional provisions on principles and values have introduced directions to be followed by the State powers.

In addition, the idea that the human person is at the center of all concerns, essentially expressed in the principle of dignity of the human person as a pillar of the Democratic Rule of Law has also produced far-reaching consequences on administrative discretion in the definition of public policies and on control thereof by the Judiciary.

Administrative discretion may present different types:

  1. cases where the scope of the discretion is not limited by definite or indefinite legal concepts, in which the administration body is allowed to opt for a solution among others equally fair, are deemed to be a typical discretion;
  2. cases where the discretion is limited by an indefinite legal concept of value that, in principle, allows for one single fair solution, and that may in some circumstances assume a certain degree of value among several fair possibilities, are deemed to be atypical discretion;
  3. finally, cases where the scope of discretion is limited by assumptions determined by an objective rule, the scope of discretion is limited to the option for some of the solutions stated by law, and these are deemed to be a mitigated or restricted discretion.

In the region the prevalent understanding is that according to which the administrative discretion does not constitute an area exempt from judicial control, or which cannot be detached from the legal system as an issue deprived of judicial interference because, strictly speaking, it only confers a wider range of power upon election of a given possibility of action that is not predetermined by law.

On the other hand, reviewing the discretionary aspects of an action exercised by a government official (administrator) is incompatible with the idea of a discretion circle or block, even when this may influence the density of such control.

Under the Rule of Law the judges cannot abdicate or waive their competence to effectively control the exercise of Administration’s discretionary powers, since judicial independence is precisely what provides guarantees that administrative bodies do not use those powers to the detriment of both individuals and public interests.

When it comes to discretionary powers (facultades discrecionales), evidence is essential if one is to reach a solution to the case. All the discretion-controlling techniques, the determining facts, good faith, misuse of powers, general principles of law, proportionality, reasonableness, cost-benefit ratio etc. are accepted in Latin-American countries to assess whether the discretionary act has been properly exercised.

These principles may be acknowledged in the constitutional text, such as the “due process” and its corollaries, and may sometimes be also found in supranational documents, such as in the Pact of San José, Costa Rica (American Convention on Human Rights).

Marcelo Figueiredo is a lawyer, jurist and legal advisor in São Paulo, Brazil.  He is also an Associate Professor of Constitutional Law at the Pontifical Catholic University of São Paulo Law School, President of the Brazilian Association of Democrat Constitutionalists and Vice-President of the International Association of Constitutional Law.