Original scientific paper
https://doi.org/10.3935/zpfz.75.4.2
Challenges to a General Theory of Discretion
Mario Krešić
orcid.org/0000-0002-0014-4157
; Faculty of Law, University of Zagreb, Zagreb, Croatia
Abstract
Discretion is used differently in various legal contexts. This study examines the theoretical foundations of discretion. It addresses four challenges to the general theory of discretion: (1) the scope of agents, (2) necessary limitations, (3) the role of norms, and (4) the sources of discretion. This study argues that the concept of discretion refers to all public agents (any agent empowered by competence norms to produce legal consequences in the public interest), including those producing direct individual acts, and that the concept includes limitations and guidance imposed on the choice between alternatives and explicit or implicit norms on the exercise of power. It explores the sources of discretion through the lens of legal reasoning and proposes a framework that integrates the justified structure of the application of rules and the applicability of rules. This study questions whether a competence norm alone can serve as a source of discretion or whether additional norms are necessary to prevent arbitrary use.
Keywords
discretion; public agent; power; legal reasoning; application of rules
Hrčak ID:
341523
URI
Publication date:
17.12.2025.
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