EL CONCEPTO DE DISCRECIONALIDAD Y SU CONTROL

Abstract

In this paper I attempt to offer a concept of discretion and to analyse the forms of control that can be exercised in this matter. From the concept of legal certainty, we can observe how discretion emerges in those cases that are envisaged by the norms and in the so called hard cases. Frequently it is maintained however, that, the only limit on discretion can be found in arbitrariness and that, apart from that, any decision would be correct. This could result in excluding discretionary decisions from legal control. Against this opinion, there are authors that think that legal control of discretionary decisions is possible because they defend the existence of only one correct answer. Other authors reject the existence of only one correct answer or the possibility of finding it. Nevertheless, even accepting that there are some aspects of discretionary decisions that do not derive from legal norms but from personal preferences, those preferences must be coherent with some theory that contains normatively correct criteria. These criteria must be as coherent as possible with the dominant system of values in the society.