Ethics and Administrative Discretion

ions of common certainty may be furnished by words of popular usage, by technical terms, or by circumscribing definitions. No general rule can be laid down as to which of these serves statutory purposes best, although a good deal might be said about the illusory certainty of some technical terms, and of cumulations and qualifications sanctioned by 1 Administrative Powers over Persons and Property (University of Chicago Press, 1928), p. 71. 230 Yale Law Journal 437-55 (1921). 12 This content downloaded from 207.46.13.176 on Mon, 20 Jun 2016 05:14:15 UTC All use subject to http://about.jstor.org/terms ADMINISTRATIVE DISCRETION traditional practice. Every common abstraction has its "marginal" ambiguity, which mere elaboration of definition cannot altogether remove. A banking law which directs the banking commission to refuse a charter unless a new bank has a paid-in capital of at least $15,000 falls into the first grade of certainty or definiteness: the standard has precisely measured terms. The second grade of legislative definiteness may be illustrated by a law which empowers the Bureau of Immigration to refuse admittance to a mentally defective person: "mentally defective person" is an abstraction of common certainty. The third grade is exemplified in a statute which empowers a commission to compel an employer to take "appropriate" measures to keep his premises "reasonably safe and sanitary." The language calls for a judgment and raises a question of degree. In his later and more systematic treatise Freund recognized an even greater freedom of choice that is conferred by statutes that are indefinite to the extent of not mentioning the conditions on which an official shall act. Thus, a permit may be required for a parade, but the police are not told on what basis they shall determine whether a permit shall be issued. Occasionally a statute will emphasize the discretion of the official by saying, "He shall have absolute . . . (or free) . . . discretion, and there shall be no appeal." James Hart distinguishes four grades of administrative discretion. He uses the names (i) discretionary, (2) judgment passing, (3) fact-finding, and (4) ministerial. This is a somewhat different classification, but the extremes of complete freedom of choice and no freedom are similar to Freund's version. Freund based his generalizations upon grants of regulatory power. Whether he would have adopted a different analysis if he had studied the discretion conferred upon officials of government corporations and service departments, I do not know. But it is clear that his emphasis in dealing with discretion is upon the indefiniteness of legislative standards. Where the legislature has been indefinite, the administrator must somehow become definite. It is impossible to prove just what the legislature meant. A question of public policy has not been completely decided by the legislators, and the enforcer of public policy must complete the decision. It follows that if we want wise public policies, we must have wisdom in the executive as well as among those who are called lawmakers. These are the terms in which a student of administrative law phrases the need for ethical acumen and sound judgment. The administrator, charged with discretionary responsibilities, has to make an indefinite standard of action precise and explicit. How can he develop a definite standard? Now let us evaluate Freund's analysis. It would be unbecoming of an amateur to question the accuracy of Freund's vast knowledge of administrative law, and my remarks should be construed as a conflict between the philosophical and the legal points of view rather than as an attempt on the part of a legal novice to find fault with a legal master. To one who is accustomed to philosophical modes of thought Freund's three or four grades of definiteness in legislative standards do not seem to have improved greatly the organization of his knowledge. In particular, I question his conception of the administrator's task as that of arriving at a definite standard. It may be recalled that Freund even suggested that the normal process would be for the legislature to enact the standards which the administrator should succeed in defining. Administrative discretion would thus be the means of eliminating the need for administrative discretion in the future. To say that definiteness or susceptibility of proof is an inadequate criterion of a good standard may be to state a trifling proposition. Let me say it. Of course, I do not believe that Freund meant to imply that definiteness is a sufficient test of good administrative standards; but his failure to specify other tests gives an undue emphasis 13 This content downloaded from 207.46.13.176 on Mon, 20 Jun 2016 05:14:15 UTC All use subject to http://about.jstor.org/terms PUBLIC ADMINISTRATION REVIEW to "definiteness," as witness such a statement