Judicial Control of Official Discretion

When men reflect about government, whether practically or academically, they always turn up, if they think deeply enough, two central problems: first, how to ensure that government shall do what it is supposed to do, and secondly, how to ensure that it shall not do other things. One is the problem of efficiency, the other the problem of control; and around the two is built most, perhaps all, of the so-called science of politics. At some periods the need for control seems the more vital and pressing. It seemed so to Englishmen, for example, during the two centuries following the accession of the Stuarts. At other times and places the pendulum has swung in the opposite direction, and in fifteenth century Europe, as in contemporary Italy, the dominant desire was for government strong enough and untrammelled enough to stem successfully a rising tide of disorder. Each age strikes its own balance in favor of one principle or the other, and thereby touches the opposite principle into action to redress the balance at some new point of readjustment.The competing claims of efficiency and control have often expressed themselves in the form of controversy concerning the comparative merits of government by discretion and govern-ment by law—or, in Harrington's phrase, a government of laws and a government of men. In this form the conflict has left its mark everywhere on political thought since Aristotle. Discretion means freedom for government to choose among possible alternatives of action. As one judge has said, “In honest plain language it means ‘Do as you like.’” It is thus a condition of efficiency, but it is very apt to exact the price of arbitrariness. Law, on the other hand, requires that government shall act by set rule, shall limit itself to a particular way of acting in each particular situation. It seeks to eliminate choice in favor of certainty; it narrows the possible range of governmental action in order that such action may be predicted and controlled in advance.