Discretion

When an agent is allowed to choose between a set of alternatives on behalf of a principal, he or she is granted discretionary power. Officials have discretionary power when they are left free to choose among two or more lawful alternatives in their treatment of particular cases. Another agents commonly associated with having discretionary power are practitioners of professional occupations. Within their respective area of expertise they are mandated to apply knowledge to the benefit of their individual clients or patients. In the welfare state, professionals often act as gatekeepers who make judgments and decisions about who is entitled to what kind of benefits and services. The decisional space left open to an agent by a principal is one aspect of discretion. The other is the cognitive activity – the kind of reasoning – that is performed within such a space. What characterizes discretion as a kind of reasoning is that it is carried out under conditions of indeterminacy – the rules and standards that discretionary power is relative to allow more than one answer. Delegation of discretionary power involves agency risks, as entrusting agents with certain tasks also gives them autonomy. However, what is expected from holders of discretionary powers is that they are willing and competent to form reasoned judgments; the entrustment of such powers is accompanied by a demand for accountability. Discretionary reasoning has an inherent tendency to produce agent‐related variations in judgments. This tendency creates tensions between delegation of discretionary power and the rule of law and democratic authority. When officials are entrusted to judge and decide more or less autonomously, this may threaten such rule‐of‐law principles as predictability and equal treatment, and for democratic bodies it is difficult to ensure that what occurs in discretionary spaces is in accordance with the political will.