Bureaucratic Discretion and Deliberative Democracy

Abstract

Administrative discretion is both a strength and a weakness of contemporary political systems. Governments could not govern without the capacity to fill in legislation with detailed administrative regulations. Further, these regulations tend to reflect far more substantive information about the subjects being regulated than would most legislation coming from the legislature or decisions reached by the courts. The weakness of using discretion in rulemaking is the lack of legitimacy of these rules. Bureaucracies have a less than positive image in most industrialized democracies, and it is often assumed that their decisions are made to aggrandize their own institutional interests, or to serve “special interests” rather than the public. Thus, in order to make rulemaking more legitimate, effective means of oversight and participation for the public as a whole are required. We argue that many of the existing means of oversight are not as effective asthey once may have been. This is true largely because of the volume and complexity of rulemaking activity. In addition, the demands of the public in most democracies for more opportunities for effective participation mean that rulemaking that is done without the opportunity for the public to involve itself is suspect. The deliberative turn in thinking about participation, especially within public administration, may provide the public with opportunities for greater direct oversight, and perhaps also greater legitimacy for the rules adopted.