Administrative Discretion and Separation of Powers

By Alfredo Moliterni

The paper analyses the position of the Government and the administration within theories on the separation of powers, through the examination of administrative discretion. In particular, taking into consideration the different tasks entrusted to public authorities throughout history, the article examines how the need to regulate the relationship between the administration, judges and the law has influenced the various theories on administrative discretion. Despite the current triumph of the rule of law and the need to ensure effective judicial protection, the paper highlights the need to preserve an adequate and rational ‘division of labour’ between the administration and the judge in contemporary legal systems, also by rethinking the traditional doctrine on administrative discretion.