Summary of La discrecionalidad de la Administración: cómo manda la Administración cuando la Ley no manda.

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The video explores the concept of discretion in administrative law, highlighting how the administration exercises its power when the law does not provide specific instructions. It argues that the administration's discretion is not arbitrary, but rather based on additional criteria and judgments. The video also discusses the role of the judiciary in controlling and supervising administrative actions. It emphasizes the need for clear and fair criteria to ensure equal opportunities and fairness in administrative decision-making.

  • 00:00:00 In this section, the speaker discusses the concept of discretion in administrative law. They explain that in certain cases, the legislator may intentionally leave room for the administration to make decisions based on additional criteria that are not explicitly stated in the law. This is because the administration is often better equipped with the necessary tools, procedures, and organizations to determine these criteria. However, when the legislator grants discretion to the administration, it also limits the ability of the court to control and supervise their actions. The fewer criteria provided by the law, the less control the courts have over the administration's decisions. The speaker presents this as a problem of the separation of powers, with the legislature, administration, and judiciary playing distinct roles in relation to each other. They also mention that traditionally, administrative law has been liberal, with the belief that the legislature directs the administration through conditional rules.
  • 00:05:00 In this section, the speaker discusses the discretionary powers of the administration when the law does not mandate a specific action. They explain that in the past, administrative decisions were thought to be based on logical reasoning and the application of rules. However, this notion has become unsustainable. The speaker argues that the administration is not controlled by strict rules and programs, but instead exercises discretion. They highlight the importance of understanding the concept of discretion in administrative actions. They also critique the idea that the administration can be easily controlled and directed by the law, emphasizing that administrative decisions often involve subjective judgment.
  • 00:10:00 In this section, the speaker discusses how the administration is directed by rules and conditional programs. However, they note that the direction of the administration is increasingly becoming unconditional, thanks to European law. The administration is now instructed to consider principles of optimization when making decisions, rather than being bound by conditional rules. The speaker gives an example of building a road, where the administration must consider both environmental protection and road safety. They argue that in cases like this, there is no clear rule as to which principle should take precedence, as it depends on the circumstances. This shift towards a more discretionary and goal-oriented approach is referred to as "direction finalística" and is prevalent in European law, especially in areas like environmental protection and product authorizations.
  • 00:15:00 In this section, the speaker discusses the concept of administrative discretion and argues against the traditional view that it only exists when there is a rule that allows the administration to choose between different legal consequences. Instead, the speaker argues for a unified concept of discretion, which is the power given to the administration to apply its own criteria in justifying a legal consequence based on a given set of facts. The speaker also mentions that discretion can be exercised in cases of indeterminate legal concepts, such as in determining social benefits or making decisions based on weighing different factors. Examples are given to illustrate these ideas.
  • 00:20:00 In this section, the speaker discusses the discretion of the administration when the law is not clear. They give an example of the accreditation process for university professors and argue that the law should provide more specific criteria. They suggest that the administration, with their expertise and procedures, should be responsible for determining these criteria. The speaker also explains the concept of indeterminate legal concepts and emphasizes that discretion is not the same as arbitrariness. There are different zones within an indeterminate concept, including zones of positive certainty (where a candidate will definitely meet the criteria) and negative certainty (where a candidate will definitely not meet the criteria). The central zone is the zone of uncertainty, where candidates are considered neutral. The speaker concludes by mentioning a conversation between two fictional candidates who discuss their accreditation applications.
  • 00:25:00 In this section, the speaker discusses the discretionary power of administration and how it is used when the law does not provide specific instructions. They give an example of a situation where two individuals, Roberto and Modesta, have different qualifications in terms of articles written and hours of teaching. The administration sets additional criteria to dissolve uncertainty and convert all candidates into either positive or negative based on these criteria. This results in Modesta being in the positive zone and Roberto being in the negative zone. The speaker argues that there is only one just solution to this issue, which is to establish clear and fair criteria to ensure equal opportunities for all candidates. They question the current solution of six articles and 450 hours and suggest that a new director of ANECA may introduce changes based on their own perspective of academic excellence.
  • 00:30:00 In this section, the speaker discusses the concept of discretion in administrative decision-making and how it can vary depending on the criteria set by the administration. They mention a book called "The Working" by Adrian Termino, which talks about the lack of administration in the United States compared to judges. The speaker also uses an example of a normative text, specifically Article 21 of the "Ley de Protección de Seguridad Ciudadana," to illustrate the idea of discretion within the context of a public security situation. They highlight the different possible legal consequences and actions that the administration can take based on the circumstances. Overall, the speaker emphasizes the need to have clear and objective criteria in order to ensure fairness in administrative decision-making.
  • 00:35:00 In this section, the speaker discusses the discretionary power of the Administration when the law does not provide specific guidance. They mention that the police have protocols for handling situations of uncertainty and serious disturbance, intervening if there is a serious disturbance with or without a firearm. The speaker compares this discretionary decision-making process to that of the ANECA (National Agency for Quality Assessment and Accreditation of Spain), stating that they both involve additional criteria beyond what is stated in the law to justify the Administration's decision. The speaker then introduces the concept of discretionality and control by the judiciary, emphasizing the importance of resolving cases with criteria in a rule of law state. They also differentiate between the norm of active conduct and the norm of judicial control in the context of discretionality in administration, using the example of interpreting hiring requirements for academic positions. Overall, they argue that discretionality involves interpreting and applying the law with additional criteria to adapt to real-life cases.
  • 00:40:00 In this section, the speaker discusses the discretion of the administration and how they create norms of conduct. They explain that while the text of the norm plays a role, it is also influenced by traditional criteria of legal interpretation, such as systemic and teleological interpretations. The speaker emphasizes the importance of transparency in the administration's decision-making process in order to ensure predictability and legal security. They also touch on the role of judicial control in overseeing the administration's exercise of discretion, highlighting the need for a balanced approach that respects the principles of proportionality and equality. Additionally, the speaker addresses the role of administrative appeals, pointing out the advantages of this type of control over purely judicial control. They advocate for rationalizing administrative appeals and maintaining hope for those who work within this system.
  • 00:45:00 In this section, the speaker discusses the discretion of the administration and how it can wield power when the law does not explicitly dictate its actions. He emphasizes that even if individuals file administrative appeals, there is no guarantee that their requests will be granted. Using a metaphor of Dante at the gates of hell, the speaker implies that there is little hope for success when facing a discretionary administrative decision that goes against one's interests. He concludes by expressing gratitude and receiving applause from the audience.

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