CRITERIA FOR DELIMITING DISCRETIONARY POWER FROM EXCESS OF POWER IN THE WORK OF PUBLIC AUTHORITIES
CRITERIA FOR DELIMITING DISCRETIONARY POWER FROM EXCESS OF POWER IN THE WORK OF PUBLIC AUTHORITIES

Summary/Abstract: A problem of essence of the state is the one to delimit the discretionary power, respectively the powerabuse in the activity of the state’s institutions. The legal behaviour of the state’s institutions consists in theirright to appreciate them and the power excess generates the violation of a subjective right or of the rightthat is of legitimate interest to the citizen.The application and no observance of the principle of lawfulness in the activities of the state is a complexproblem because the exercise of the state’s functions assumes the discretionary powers with which thestates authorities are invested, or otherwise said the ‘right of appreciation” of the authorities regarding themoment of adopting the contents of the measures proposed. The discretionary power cannot be opposedto the principle of lawfulness, as a dimension of the state de jure.In this study we propose to analyse the concept of discretionary power, respectively the power excess,having as a guidance the legislation, jurisprudence and doctrine in the matter. At the same time we wouldlike to identify the most important criterions that will allow the user, regardless that he is or not anadministrator, a public clerk or a judge, to delimit the legal behaviour of the state’s institutions from thepower excess. Within this context, we appreciate that the principle of proportionality represents such acriterion.The proportionality is a legal principle of the law, but at the same time it is a principle of the constitutionallaw and of other law branches. It expresses clearly the idea of balance, reasonability but also of adjustingthe measures ordered by the state’s authorities to the situation in fact, respectively to the purpose for whichthey have been conceived.In our study we choose theoretical and jurisprudence arguments according to which the principle ofproportionality can procedurally be determined and used to delimit the discretionary power and power abuse.

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