FROM DISCRETION TO EXPERT JUDGEMENT: RECASTING SEDIMENTED CONCEPTS IN ADMINISTRATIVE LAW

Abstract This article re-examines the traditional account of administrative decision-making under wide conferrals of statutory power. The received wisdom in such cases is that public officials exercise “discretion”, usually defined as freedom of choice. Based on a doctrinal study of the English planning system and related case law, this paper contends that the notion of discretion as choice obscures one of the defining characteristics of modern government. That is, the making of public decisions tackling practical problems with intelligent and expert judgement under legal standards set out in legislation and further developed by the courts. More widely, the paper discusses the foundational role of tacit knowledge and decision-making expertise in public administration.