The Argument of Rightness as an Element of the Discretionary Power of the Administrative Judge

Abstract

The article concerns the situation of the judicial application of the law where the entity applying the law refers in a decision-making process to moral principles. The decision should be based on the directives of interpretation, which indicate the need for such a determination of the meaning of the applicable norms so that it remains in harmony with commonly accepted moral rules of the society. The equity (understood as rightness) has one more purpose; namely, it allows for the process of decision-making—and not just for the process of unifying the decisions—since the mere rule does not specify the algorithm of undertaking them. This rule thus assumes that it will be further specified by phronesis judge who in a given situation will determine—for the purposes of a particular decision—a hierarchy between the criteria of substantive justice “embedded” in this rule. The reference to equity (rightness) stands for the concretization of an unspecified general rule. We deal here with an indefinite general rule, the application of which is facilitated by a reference to rightness.