ADMINISTRATIVE DISCRETION AND THE RULE OF LAW

Author(s): ALEXANDER H. PEKELIS

Source: Social Research, Vol. 10, No. 1 (FEBRUARY 1943), pp. 22-37
Published by: The New School
Stable URL: http://www.jstor.org/stable/40981938
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ADMINISTRATIVE DISCRETION
AND THE RULE OF LAW1
BY ALEXANDER H. PEKELIS
i

vjiURRENT
discussionsof the characteristics
of the common law
countriesas contrastedwith thoseof the so-calledcivil law countriesemphasizethe individualisticcharacterof the former.I have
a comparisonbetweentypicalcommonlaw
undertakenelsewhere*
and enforcement
and thosecommonlyused
devicesofinvestigation
in civil law countriesof the Latin type.This comparisondid not
substantiatethe currentopinion. The pivotal importanceforthe
of the Anglo-American
veryfunctioning
legal systemof such institutionsand principlesas contemptofcourt,dutyof disclosureand
the jurysystem,and the lack of commensurateinstitutions
in the
civil law systems,
in
that
the
law
a
common
has
more
indicate, fact,
collectivistcharacterand thatthereis a pronouncedindividualism
in legal institutions
of theLatin type.
thatI have
But thepressureofthecommunity-thecharacteristic
tried to emphasize is much more the pressureof the small communitythanthatof thestate,say,or of thenationas a whole.The
pluricellularstructureof Americansociety,with its wide variety
of different
unions,churches,
typesof communities,fraternities,
and itsdecentralization
notonlymakesforgreater
ofsocialpressure,
but also represents,
or at leastuntilrecentlyreprespecificstrength
a
valve
the
for
sented, safety
systemas a whole.
The presentpaperis concernednotso muchwiththecentrifugal
forcesof social structureas withcertaintypicalmanifestations
of
activity
centripetalforces more precisely,withthe ever-widening

This articlehas been preparedin connection

withtheGraduateFacultyResearch
Politicaland Legal Trends."
Projecton "Contemporary
^AlexanderH. Pekelis,"Legal Techniquesand PoliticalIdeologies,A Comparative
Study/'in MichiganLaw Review,vol. 41, no. 4 (February1943).

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DISCRETION

AND THE RULE OF LAW

23

of administrativeagencies operated by the central government.

Untilrecentlyall leadingwritersseemedto agreethatthegrowth
of administrative
agenciesis a phenomenonalien to the spiritand
countries.In 1886,on theveryeve
practiceof theEnglish-speaking
of the expansionof administrative
agencies,two men on opposite
sides of the Atlanticwere writingon the problem-AlbertVenn
Dicey, in England, and Woodrow Wilson in this country.The
formerwas an alreadyfamousEnglishconstitutional
lawyer,witha
ratherTorybackground;thelattera youngAmericanliberal.They
ofeach other,treatedtheproblemdifferently,
wroteindependently
and reacheddifferent
conclusions.But therewasone pointofagreementbetweenthem.The one speakingofthescienceofadministration,the otherspeakingof administrative
law, theydeclared: "It
is a foreignsciencespeakingverylittleof the languageof English
or Americanprinciple.It employsonly foreigntongues;it utters
none but what are to our mindsalien ideas." "The absence from
our languageofanysatisfactory
equivalentfortheexpressiondroit
is significant:the want of a name arisesat bottom
administratif
of the thingitself."This seemsto be a
fromour non-recognition
in
the
samespirit.But actuallytheyare two,
written
singlepassage,
the firstwrittenby a man who stronglyadvocated,and thesecond
by a man who vehemently
opposed,thegrowthof administration.
And even todaymanyauthoritativelegal writersin this country
and Englandstillmaintainthattheriseof administrative
agencies
is a phenomenonrepugnantto the spiritof the Anglo-American
law. Thus we read in one ofDean Pound's writings:"Throughout
the world therehas been a revivalof absolutism.Administrative
absolutismin theUnitedStatesis but one phaseofa typeofthought
thathas infectedall the social sciences,has put its markon internationalrelations,on politics,on legislationand even on judicial
decision.But are we,whohaveinheriteda greattraditionofjustice,
preparedto throwit overin orderto fallin line withthispost-war
fashionof absolutism?"And his wordsare substantiallyin agreementwith the outcryof Lord Chief JusticeHewart,whose book
The New Despotismappeared in England twelveyearsago.

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SOCIAL RESEARCH
24
It is safeto say thatthe essentialobjectionto the activityof administrative
agenciesis directedagainsttheextremely
greatamount
of discretionwith which theyare entrusted.The administrative
agencydoes notapplyanyfixedrule oflaw: it actsaccordingto considerationsofpolicy- ofreason,ofpublic convenience,ofeconomic
of business fairness,of social
expediency,of national efficiency,
The
fate
of
individuals
progress.
subjectto itsjurisdictiondepends
largelyon the discretionof the men who run the agency;and the
individualis facedwitha governmentby men and not with that
- whichis deemed to
governmentby law- say the critics
represent
theveryessenceof thecommonlaw tradition.
But is thereindeed a violationof this particulartradition?In
what is the actual role of disregardto concretelegal institutions
cretionin the commonlaw system,as comparedwith its role in
the systemsprevailingon the European continent?Is it true that
in common law countriesthe administrationof justice-because
bound bypreciseand specificprecedentsor becausecloselywatched
by public opinion, or forother legal or political reasons-is less
exinfluencedthan in the civil law countriesby "administrative
pediency"? To what extentis governmentby law a specificcommon law traditioninconsistent
withthe growthof administrative
agencies?
and studies
These questionscannot be answeredcategorically,
thatmayfurnisha basisforjudgmenthavenotyetbeen completed.3
But even at the presentstageof analysisit is possible to say that
in common law countriesneeds of public policy,exigenciesof
are taken into account in the ordinary
moralityand efficiency,
administration
of justice to an extentundreamedof on the Euroamount of discretion
pean continent;and thatthe corresponding
law makesof itsenforceinherentin thesystemofAnglo-American
in
civil
law countrieshas been
mentan activitymuchcloserto what
consideredadministrativeadjudication than to what has constitutedadministration
of justiceby theordinarycontinentalcourts.
It is notpossibleto presentherethematerialwhichappearsto sub8See footnote 1.

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DISCRETION

AND THE RULE OF LAW

25
stantiatethissomewhatsweepingstatement.But it maybe at least
illustratedby two typicalsituations:one concerningthe fieldof
contracts,the otherthatof crime.
11

In regardto contractsit should be rememberedhow fara courtin

common law countriesmay go by invokingequity doctrinesin
certaincasesto enforcecompliance,and in comparisonhow powerlessis thecivillaw judge,whodoes notsuspecttheexistenceof conof substantivelaw duties.4But
temptpowersforthe enforcement
theexerciseofsuch poweris alwaysa matterofjudicial discretion,
nevera matterof course: the social pressureis not applied in all
*
cases,butonlyin some.This we mightcall the 'selectivity
principle
of enforcement,"
its resultbeing,amongotherthings,thatnot all
contractualrightsare protectedthroughthesanctionsofinjunction
and contemptof court,but only thoseof litigantswho live up to
certainmoral and social standards.Injunction is grantedby the
court of equity,and equitable reliefis never a matterof right.
Strictlyspeaking,in a court of equity you have no rightsat all.
Theoreticallyit is a matterofgrace,ofjudicial boon. Substantially,
ofcourse,thereis a fairdegreeofpredictability
as to whatthecourt
ofequitywill do. But thetheoryis keptalive,in orderto maintain
in a stateof fluxthe teststhatthe courtapplies- businessfairness,
social desirability,
public policy,perhapseven personaldecency.
The situationin the courtof equity has two characteristic
featuresunknownto a European court.First,thecourtis not limited
to the choice betweengrantingor not grantingthe reliefsought.
It maygranta so-calledconditionalrelief,practicallyrewritingthe
contractforthe parties,sayingperhapsthatit will give you relief
if you pay in gold insteadof in greenbacks;"he who seeksequity
mustdo equity." In the second place, a plaintiffthrownout of a
court of equity is not necessarilydeprivedof his so-calledlegal
remedy.His contractis bad in equity,he won't get the equitable
injunction,but he maybe entitledto the remedyat law.
4See Pekelis, op. cit.

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26

SOCIAL

RESEARCH

Thus, insteadof the two rigidcivil law categories,accordingto

whichcontractsare eithervalid or void,thereis an interplayoflaw
and equitywhichcreatesa considerably
widerrangeofpossibilities.
There is a twilightzone ofwhatcould be styledcontracts
semipleno
to
which
contracts
at
law
and
jure,
belong
good
conditionallygood
in equity,contractsgood at law and bad in equity,contractsbad at
law and good in equity.A merelyoral landconveyance,
forexample,
undoubtedlyand utterlyvoid at law, may in certaincases be enforcedthroughequitable injunction,while the same relief may
sometimesbe denied to a written,sealed and notarizedcontract.
It shouldnotbe imaginedthatthelitigantfindshimselfon more
solidgroundwhenhe is once out ofthecourtofequityand confined
to theremediesofa courtoflaw. The so-calledlegal remedysimply
theconstitutionalrightto have determinedby thejury,
represents
in a courtoflaw,theamountofdamagesdue forbreachofcontract.
And heretheghostofthecourtofequity,out ofwhichtheplaintiff
has just been thrown,reappearsbeforehim in the dictumthatas
to the assessmentof damagesjurorsare chancellors,thatis, judges
ofequity,enjoying,in factthoughnotin theory,
wide discretionary
fix
ex
to
the
amount
et
of
damages aequo bono,takinginto
powers
considerationeverypossible extra-legalelementthatmightseem
materialto them,be it economic,social, political or moral. Betweena six-centverdictand the grantingof compensatory
or even
in
there
punitivedamages the fullamountclaimedbytheplaintiff
is a wide rangeof possibilitiesin whicheveryelementmayfindits
freeexpressionuncheckedby the obstaclesof a writtenopinion.
Againstthe discretionof the jurors the partyhas only one hope:
thejudge maysetaside theverdictas evidentlybiased or unreasonable. But this again is mostcertainlyan absolutelydiscretionary
powerof thecourt.
committedfromtheequitable discreThus we findthe plaintiff
tion of thechancellorto the "equitable" verdictof thejurors,and
fromthatto thediscretionof thetrialcourt.He can nevergethold
of thefirmbasisof a rigidlaw. The legal normis everywhere
carefullycushionedby judicial discretion,and as a resultthe plaintiff

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DISCRETION

AND THE RULE OF LAW

27
cannot escape the slipperyand uncertainground of human discretioninspiredby motivestoo subtleand delicateto be translated
into fixedlegal formulae.Governmentby law? Obviouslynot, if
by that is meant "governmentby the certaintyof law." At best,
governmentby gentlemen.
An elementofdiscretionis, of course,involvedin everypossible
judicial system,and in no countryat any time has justice been
administeredby machinesof logical subsumption,distinguishing
appliance.
rightfromwrongwiththecold precisionofa coin-testing
But the European Rechtsstaatwas plannedand organizedwiththe
verypurposeofreducingthehumanelementin theadministration
ofjusticeto itsimaginableminimum.The remediesforthebreach
- or of the singletypeof contract,such as sales,loans,
of contracts
- are definedbycode. The judge mayexercisea certain
partnership
amountof discretionin holdingthe contractvalid or void. But if
he holds the contractvalid he cannot forany reason denyany of
thecode remedies,norcan he,ifhe holdsitvoid,grantanyofthem.
He cannot discriminatebetween plaintiffand plaintiff,and no
middle-of-the-road
positioncan enable him to proceedto a dosage
of relief.Furthermore,
the judge has no contemptpower in the
fieldof substantivelaw. The typicalremedyconsistsin the award
of damages,but thereis nevera jury in a non-criminalcase, and
thereis nobodyto strikethe delicatebalance betweenthe indefinable incompleteness
ofrightand wrongon thepartof thelitigants.
There are no verdictswhichare renderedwithouta statementof
reasons:thejudge has to writeout his opinion and showthe exact
amountof the plaintiff's
injuryin dollarsand cents.The less discretion,themorejustice.Governmentbylaw,at leastin thecourts,
is theideal upon whichcontinentalinstitutions
werecarefullypatterned.The highestequitywas thoughtto be foundin therigidity
and certainty
of the law.
The commonlaw,on thecontrary,
createsa complicatedmachineryto avertthisrigidity.It calls thismachineryequity,and sometimestriesto distinguishitselffromthislessnoble relative.There
is no chance,though,thatit will rid itselfof its yoke-fellow.

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s>8

SOCIAL RESEARCH
Thou robedman of justice,takethyplace;
of equity,
And thou,his yoke-fellow
Benchby his side.

Thus spokeKing Lear in thephantasmictrialofhisdaughters.And

his insanityis probablyshown only by the fact that by yoking
Robed Justiceand Equity on the same bench he somewhatanticipated the EnglishReformof 1872.
The existenceof thisdouble legal order,and the possibilitiesof
individualizationthatit is made to yield,strongly
suggestthatgovernmentby the certaintyo law is not the reality,and indeed not
institutions
eventheideal limit,towardwhichtheAnglo-American
aim: it is,in a way,themain dangertheytryto avoid.
individualizationand pureadThe sameprinciplesofselectivity,
discretioncan be foundin the fieldsof criminallaw
ministrative
and procedure.To begin with,under the Americansystemcriminal prosecutionis simplya rightand nevera dutyof the federal
or stateattorney.Its exerciseis whollywithinthe discretionof the
and the grandjury. In Italy even the code of
prosecutingofficers
1931did notabandon theso-called"legalityprinciple" (as opposed
to the "opportunityprinciple"),whichmakesprosecutiona duty
of theattorneygeneral;in Franceand in Germanytheprosecuting
agencyhad but a slightdegreeof discretion,and thispertainedto
and was subject to reviewby the court.Here a reminoroffenses
fusalto prosecuteis not subjectto anykindofjudicial review.The
agencymayevenabandon an alreadyinitiatedprosecuprosecuting
it maylawfully
or
tion, prosecutefora lessercrime.Furthermore,
withthedefendants,
enterintothemostvariedkindsofagreements
defendant'spromise
the
of
the
from
ranging
acceptance
agreements
to becomea witnessforthe prosecutionto the signingof an elabosuit.'
rateconsentdecreein an anti-trust
*I shouldlike to add thatsomeof theseso-calledconsentdecrees,obtainedby an
in modern
obvious"or else" technique,representthe mostinteresting
experiments
the
network
that
created
consent
decree
of
the
I
am
thinking
lawmaking.
particularly
and of the StandardOil
of arbitrationtribunalsin the movingpictureindustry,
ofcompulsory
freelicensingin thefieldofpatents
consentdecreethatseta precedent
and of licensingfora "reasonable"royalty.

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DISCRETION

AND THE RULE OF LAW

29

Althoughthis typeof discretionis apparentlyonly a negative

one- the prosecutingattorneycan forbearprosecutionbut he cannot himselfsentencea defendant-such a procedural situation
mightexercisea deep influenceupon legislativetechnique.It is
quite probablethatthegeneralities,vaguenessor severityof many
penal statutes,such as the Mann Act,theShermanAct or the laws
mail fraud,incomedisclosureand the like,
concerningconspiracy,
could never have survivedif prosecutionin each case were the
affirmative
dutyof thefederalattorney.Thus the practicaladministrationof criminaljustice,at leastin itsnegativeaspect,becomes
an administrative
ratherthan a judicial activity.
In thissituationjudgescan hardlybe expectedto leave theAttorney General a monopolyof discretionand of considerationsof
moralityand policy.The verytraditionofjudicial lawmakingopens
to themsome possibilitiesunknownto theircontinentalbrethren.
Everyactwhichin theopinionofthecourttendsto public mischief
- whetheror not foreseenby any
penal or otherlaw- is a common
law misdemeanorand mustbe punishedas such.This rule maybe
of limited practicalimportancetoday,but it is worthrecalling
that it was applied in England as late as 1933, to a woman who
"caused officers
of the MetropolitanPolice maintainedat public
...
to
devotetheirtime to the investigationof falsealexpense
legations,therebytemporarily
deprivingthe public of the services
of these public officers
and renderingliege subjectsof the King
liable to suspicion."The decisionwhichaffirmed,
in theabsenceof
any statute,the convictionfor common law misdemeanorwas
renderedby Lord Hewart,ChiefJustice,authorof The New Despotism,mentionedabove.
Many otherinstancesof the comparativeimportanceof the discretionaryelementin the fieldof criminallaw mightbe added.
Mentionmightbe made of thedistinctionbetweenmala in se and
mala prohibitain thefelonymurderrule,ofthepowerof thecourt
-as distinguished
fromthejury- to gatherand considereverykind
of evidencewithoutbeing bound by any rule of evidence.A close
comparisonof the relative importanceof the pardoningpower

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SOCIAL RESEARCH
3O
would probablyreveal its institutionalcharacterin commonlaw
manifestation
of the differcountries.But the most characteristic
ence in the two attitudesmay be seen in the fateof the so-called
positiveschoolof criminallaw.
This school,foundedby Lombroso,Ferri and Garofolo,had a
large followingin all European countriesbut neversucceededin
makingany seriousheadwayin the legislationof thosecountries.
The objectionsoftheEuropeanliberals,moreor lessclearlyarticulated, have been substantiallyfoundedon the contentionthatindividualizationof criminaljustice would affector underminethe
fundamentalprinciplesof punishmentby law: nullum crimenet
nulla poena sine lege. It would reducethe businessof punishment
to a discretionary
althoughscientific
activityofa bodywhichwould
administrative
an
much
more
resemble
agencythana judicial tribunal. Amongthe manysurprisesthatthiscountryholdsfora European lawyer,not the least strikingis that of findingLombroso,
Ferri and Garofolowidely translated,discussedand followedby
as parSuch institutions
legislature,judiciaryand administration.
dreaded
indeterminthe
don, probation,parole and, particularly,
ate sentence,havebynowan unchallengedcitizenshipin theAmerican penal system.
in

thus farseem to reveal

In brief,then,comparativeinvestigations
thatin theadministration
ofjusticethecommonlaw countrieshave
a
relied
traditionally
powerto
upon wide exerciseof discretionary
an incomparablygreaterextentthanany civil law countryin Europe. If the Americanscholarthinksthatthe tremendousgrowth
of administrative
agenciesin thiscountryis a developmentofalien
origin,inspiredby a civilian philosophy,the European lawyerin
The networkof American
turncannothelp disclaimingpaternity.
administrative
yearsrepresentsa
agenciescreatedin the last fifty
the
to
to
least,appears be much less inphenomenonwhich, say
withtheactualmechanismofthecommonlaw thanwith
consistent
the workingprinciplesof the European legal systems.

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DISCRETION AND THE RULE OF LAW

31
aresubstantiated
theoretical
remarks
Thesemerely
byexaminain
and
in
If one
the
factual
situation
this
tionof
country.
Europe
wereinvitedto citethemosttypicalandsignificant
prewarAmeritheFederal
canagenciesonewouldprobably
name,amongothers,
and ExchangeCommission,
Trade Commission,
theSecurities
the
NationalLaborRelationsBoardand,in thefirst
line,thevarious
fromtheveteran
Interstate
Commerce
commissions,
publicutilities
to theFederalPowerCommission.
Commission
Butin thesefields
democratic
thatcould
Europecarriedoutnoadministrative
activity
be significantly
No
which
could
compared. initiative-taking
agency
bementioned
assomehow
withtheFederalTradeComcomparable
created
here
mission,
nearlythreedecadesago,or itspredecessor,
theBureauofCorporations,
as earlyas 1903,everexisted
organized
in the Europeandemocracies
of the Latin type.In continental
the
enforcement
of
the
lawsand of international
convenEurope
tionsconcerning
unfaircompetition
has beenleftalmostentirely
to privateinitiative,
whichhasmeant,ofcourse,a nullification
of
for
the
consumer
or
the
small
busianyprotection
non-organized
nessman.
Variousbureaus,
eitherindependent
in thetreasurorintegrated
ies or nationalbanksofthevariousEuropeancountries,
couldbe
a counterpart
considered
oftheAmerican
Securities
andExchange
Commission.
But noneof themeverhad thepoweror theimportanceof thatbody.In regardto France,forexample,it mustbe
thatstockspeculationand stockfraudshave for
acknowledged
fora greatnumberof panicsand
manydecadesbeenresponsible
that
scandales
de
bourse
became
an almosttraditional
feature
crises,
oftheStockExchangeofParis,thatthePanamabubblehad economicconsequences
comparablewiththoseof the Black Friday
of 1929and a politicalandemotional
at leastequal to
significance
thatofthelatterevent.Butno effective
measuretocheckthesituationwasevertaken.Whatever
theeconomicand socialcausesthat
frustrated
at controlin France(and thesameforces
everyattempt
werefairly
activein thiscountry
as well),theformalistic
political
and legalideologiesoftheprogressive
in
rendered
groups Europe

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32

SOCIAL RESEARCH

the introductionof efficient

regulation.The
enormouslydifficult
Securitiesand ExchangeCommission,on the otherhand,was preceded by morethantwentyyearsof experimentalBlue Skylegislation,a typicalAmericandevice.The earlyKansas Statuteof 1911,
and rigorousthananything
forexample,is muchmorepenetrating
attemptedeven during the postwarbooms and depressionsin
Europe.
A comparisonbetween the Americanand the European techniques in dealing with public utilitiesis especiallyenlightening.
controlsin thisfieldis particuThat the systemof administrative
larlydevelopedin the United Statesis generallyadmitted.But it
is held thattheEuropeanphenomenonofpublic ownershipofsuch
servicesis thecounterpartofpublic utilitycontrol,and it is usually
implied that public ownershiprepresentsa much strongerand
morecompleteformof public controlof business.It maywell be,
however,thatthisis trueonlywithveryimportantqualifications.
Public ownershipof business,while a directinterventionof the
statein economiclife,is onlyan indirectformofcontrolof private
business.It should be investigatedwhetherthe necessityfor the
stateto enterbusinessdirectlywas not,at leastin certaincases,due
ofregulatingotherpeople'sbusiness.
to theadministrative
difficulty
To go into business,to investmoney,to run all therisksand difficulties,is froma sociologicaland psychologicalviewpointquite a
different
matterfromcompellingtheindependentand privateownersofan enterpriseto runit accordingto publiccriteria.
It happenssometimesthata weak personmustturnto stronger
measuresthana strongone, and thenecessityto expropriatea businessinsteadofregulatingitmayhaveitscause in thelackofa strong
and efficient
administrative
or ofa public opinionwillmachinery,
ing to acceptand to back the penetratingpublic controlthatthis
type of regulationinvolves. Indeed, it takes much more social
who
pressureto determinethebusinessconductofan entrepreneur
maintainsa certaindegreeof independencethan to buy him out
him into a salariedemployee.
and transform
The historyof regulationof public utilitiesin thiscountryis,

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DISCRETION AND THE RULE OF LAW

33
ofeconomicabuses,politicalcorrupas everyone
knows,a history
andjudicialblindness.
Butthrough
tion,administrative
inefficiency
all the uncertainties,
and deviationsfromsound
inconsistencies
economicpolicyand simplebusinessfairness
and commonsense,
an impressive
and uniqueexperiment
hasbeenaccomplished
and
an extraordinary
stockofexperience
accumulated.
The publicservicecommissions
aretodaydoingmostinteresting
workin thefield
of settingpublicstandards
of ratefixing.
Theirsis probablythe
first
in our typeof
quantitatively
important
planningexperiment
and
it
a
society,
representsuniquewealthofcasematerialforthe
theoretical
in a plannedeconomy.
problemof thepricefunction
The oncenarrowconceptof publicutilityhas in thelastdecade
a deepchangeandhasbeenmergedintoa broaderconundergone
an all-embracing
The technique
of
cepthavingpractically
meaning.
in
to publicownershiphas transcended
the
regulation contrast
and
of
administrative
law
an
become
alternative
to
the
scope
apwasteand state
parently
inescapablechoicebetweencompetitive
or statecollectivism.
One can hardlyoverestimate
the
capitalism
ofthistechniqueifit provesitselfable to repoliticalimportance
conciletheprofitincentiveof individualinventiveness
withthe
furtherance
ofsocialaimsoflargerproduction
andwiderdistribution.Andthemostprogressive
trendin thefieldofpublicservice
commission
seems
to
reduce
toa function
ofthesocial
policies
profit
performance
by theenterprise.
accomplished
The greater
extension
ofthescopeofadministrative
in
activity
theUnitedStates,
anditsdeeperregulatory
havein myopineffect,
ion been made possibleby whatI shouldcall the threemain,
characteristics
oftheAnglo-American
originalandtraditional
legal
reliedupon thepostechnique.This techniquehas traditionally
ofactingin personam
in ordertoobtaina certainstandard
sibility
ofpersonal
andgenerally
behavior;
uponthesweeping,
penetrating
feltdutyofdisclosure;
and uponthewiseexerciseofbroaddiscreOn thewholeAmerican
administration
is always
tionary
powers.6
to
with
the
mostcomplicated
and intimateaspectsof
ready cope
6The firsttwo aspects are discussed in Pekelis, op. cit.

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34

SOCIAL RESEARCH

privatelife,businessor personal,and is backed by a strongpublic

opinion in itsexpectationof substantialdisclosureand substantial
compliance.
In a difficult
or delicatesituationa European democraticgovernment,withthe help of extremelyable legislativedraftingcommittees,would engage in the pursuitof a perfectstatutethatwould
and properlyregulatein advanceeverypossiblecase.
foresee,classify
In this countryreliance is placed mostlyon the commonsense,
be he judge or administradecencyand skillthateverymagistrate,
tor,is expected to evidence in the handlingof individual cases,
each of whichstandsupon itsown merits.
If we are rightin seeingin thisexpectationthe typicalattitude
of theAnglo-Saxondemocracies,thecontentionthatthegrowthof
administrative
action is inconsistentwith common law tradition
representsno more than one of thosefalseissuesthatso oftenbecloud thereal ones. One of thesereal issuesprobablyturnsaround
theexpansionofofficial
initiativein theenforcement
of individual
rights.Long beforethe creationof the National Commissionof
Railroads,one of the oldestfederalagencies,a privatepartycould
obtain fromthe courtsprotectionagainstthe exaction of unjust
rateschargedin theexerciseofa commoncalling,againstdeceitful
tradepractices,againstcombinationsin restraintof trade,against
in the sale of sharesand bonds,and even permisrepresentations
the
violation
ofcertainlabor laws.What makesforthe
hapsagainst
oftheadministrative
activityis thatinsteadofpossessing
peculiarity
a
only "cause of action" the individualcompetitor,consumer,investoror workerhas now a negotiorumgestor,a public agencythat
does the courtjob forhim. This probablymeans thatthe typeof
civil litigationwhichhas hithertobeen regardedas fundamentalis
daily losing its importance.We may witnessa phenomenonnot
dissimilarto thatexperiencedby England in the formativeperiod
of criminalprocedure,when individual criminalprosecutionby
the so-calledpersonalappeal was graduallysupersededby administrativeinitiativein the punishmentof crimes,exercisedby the
juryand thecoroner.
presentment

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DISCRETION

AND THE RULE OF LAW

35

IV

On theotherside oftheocean liberalcivilianlawyerstookthestand

forthe Rechtsstaat,
thestatodi diritto,the supremacyof legal certainty,againstthe risingdiscretionof totalitarianadministration,
makingof this doctrinean ideological weapon. We learned,believedand taughtthatcertainty,
are theonly
clarityand normativity
ideals towardwhicha legal systemcan strive.We asked the state
to conformwiththeKantiancategoricalimperativeand act in such
a waythatthemaximofeach ofitsactionscould becomea universal
law. In our distrustofgovernment,
bureaucracyand thediscretion
of judges and administrators
we engaged in the pursuitof that
the
in the formof the perfectstatute,
law
legal bluebird,
perfect
which would assure the functioningof a justice independentof
humanwhims.We saw the totalitarianparties,first,
and thenthe
totalitarian
little
little
the
governments,
destroy
by
perfectmachine
of legalitywe werebuilding,or at leastthoughtwe werebuilding.
And we defendedit stubbornly,and were satisfiedthatwe were
accomplishinga socially,morallyand politicallyusefulmission.
When we European liberalswerefirstfacedwiththedisputebetweenthe Americanliberalsand the Americanconservatives
conlaw and administrative
discerningthequestionsof administrative
the
first
of
of
us
was
to
tell
the
American
cretion,
impulse many
liberalsof our European experience,to warn themagainstthe inherentdangersof the rise of administrative
discretion,and to tell
themthatwe could vouchforthetruthofthestandoftheAmerican
But a morecarefulconsiderationofAnglo-American
conservatives.
and
a littlemore thoroughinvestigationof the real
legal history
traditionofthesecountriesshouldhaveconvincedus thatwiththem
'
the so-called"administrative
despotism'is anythingbut new,that
administrative
discretionthroughthe governmentby unwritten
law is centuriesold among English-speaking
peoples. Moreover,
candorrequiredus to comparetherecordof thesepeopleswithour
own political and social record.And we could not help finding
thatnotwithstanding
the strikingamount of discretion-the lack
of legal certainty,
Cartesianclarityor Kantian normativitycivil

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SOCIAL RESEARCH
36
and politicallibertieshave been protectedin the English-speaking
countriesnot less but morethanin our Rechtsstaatcountries,and
thatpeople on the whole are certainlynot less happy therethan
thoseon our sideofthewater.
We beganto ask ourselveswhetherthesuccessof thetotalitarian
partiesin Europe could not be largelyexplainedbyour strictbelief
in the ideal of governmentby law, withwhichwe kept faitheven
when we had controlof administration;whetherthe voluntary
renunciationofanyinvestigation
goingbeyondlegal formulae,the
and prosecution,the reluctance
in enforcement
lack of selectivity
did not deprivethe
to solve legal problemsby moraldistinctions,
and
whetherin our
of
democracies
strength
efficiency;
European
belief in the overwhelmingimportanceof perfectlegislationwe
did not neglectfundamentalsocial problems,such as the positive
political educationof individualsand the creationof an efficient
and remunerationofjudges and administrasystemof recruitment
certainideals we
in
tors;whether, short,forthesake of preserving
we did not make theirverydefenseimpossible.
On the otherhand,shouldwe, forthe necessityof defendingit,
destroythe veryobject of our defense;should we, forthe sake of
life, lose the reasons for living- proptervitam vivendi perdere
causas?Is thisthe finaldeadlockof legal philosophy?Today thisis
muchmorethantheproblemof a Rechtsstaatlawyer'sadjustment
to thecommonlaw background.We have seen in thepluricellular
structureof Americansocietyand governmentone of the safety
valves thatcompensatesthe strengthof social pressure,of which
This
discretionand administrative
powerare but a manifestation.
pluralisticstructurewould probablynot have been possiblein the
countrieswithoutthe Britishsplendid isolation
English-speaking
The isolationand thesecurity
and theAmericantwo-oceansecurity.
externalpressurethe safety
a
new
Under
are rapidlyvanishing.
valveof loose-knitrelationsdisappears;a morecompact,a centralized, a new statelooms.What is the new solutiongoingto be?
In theexerciseofdiscretionary
powerstheAmericanadministrative agencieshave gatheredand,are daily building up mountains

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AND THE RULE OF LAW

37
of thisintocase law and into
ofcase material.The transformation
law toutcourt-requiresgreatconstructive
imagination.Everydisactivityyieldsaftera certainperiodoftimea setofmore
cretionary
or less intelligiblerules. To produce a rathervague equity law
Englandrequiredcenturies.Are we goingto wait thatlong before
The
we formintelligiblelaw out ofmodernadministrative
activity?
question beforeus is not whetherwe should go back to the rules
of,say,a CourtofCommonPleas in orderto escape thenewdiscretion of administrators.
The questionis how fastand how well we
are going to extractfromour new factmateriala new law; how
soon we are goingto createnew legal standardsand ideas thatwill
fitintoour changedeconomicand social systemas well as theideas
ofcontract,
claims,debtand thelike fittedintothesociety
property,
thatcreatedthem.
What thesenew conceptsare I do not know.But I do knowthat,
forexample,"lease-lend"doesnotfitwithintheobligationconcept;
that"fairreturnon fairvalue" does notfitintotheenterpriseidea;
thatthecategoryof "needs"is susceptibleofno lessimportantlegal
developmentsthan thatof "rights"or "claims" provedto be. The
alternative"discretionor rule" means fortoo manya choice betweena newlawlessness
and theold rules.A betteranswermightbe:
let us go to work and produce fromthe new factsa new rule, a
new law.
Afterall, the relationbetweendiscretionand rules is like that
betweenthoughtsand words.Words never expressthoughtsentirely;moreover,old wordsoftenbar thewayto new thought.But
the solution is not to do away with words,to substitute"pure
thought"forexpressedthought,"pure equity" forarticulatedjusfornew expressionthethoughtitselffindsnewer
tice.In struggling
and higherlevels.The relationbetweendiscretionand rule is not
static.It is a livingand perpetuallyrenewedrelationbetweencreatorand creature.To bringthisrelationinto thefulllightofpolitical consciousnessis thelawyer'stasktoday.
DISCRETION

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