Administrative discretion in the system of ensuring state sovereignty: a functional analysis
Authors:   Tomsk State University, Vedyashkin Sergey V. , Zaytsev Dmitriy I. ,   Moscow State Law University named after O.E. Kutafin
Published: November 2024

Discretionary powers of the law enforcement system in general and state security bodies in particular is a deep problematic layer of modern human rights theory. Analysis of administrative discretion of executive authorities in the functional-legal context is required in order to be able to assess the discretionary activity of these bodies in general and as a whole, and not in any part. Regulatory and protective function of administrative law play an important role in the system of ensuring state sovereignty. However, sovereignty must be preserved both in normal (normal, everyday, ordinary) and extraordinary (special, special, extraordinary) conditions. In the first case, there are no threats to statehood, and sovereignty is maintained by sub-functions of the regulatory function. In the second case, there are already some appropriate extraordinary circumstances (military conflicts, rebellions against the government, natural disasters, etc.), for the elimination of which both functions under discussion are involved, but above all - the protective function. Administrative discretion in ensuring state sovereignty is mainly present in the framework of the protective function, it is realised in ensuring state sovereignty only when there are such extraordinary circumstances that threaten the statehood as such. Modern theory and practice of ensuring state sovereignty usually distinguish two basic approaches to the discretionary powers of executive authorities in emergency conditions. The first of them is based on the norms of Russian law, and the second - on the norms of international law, and for simplicity of the reader's perception we will designate them conventionally as the Russian approach and the international approach. The international approach declares the opposite - in order to neutralise internal and external threats to state sovereignty, the agents of executive power have the right not only to exercise all the powers granted to them by law, but also to significantly exceed them, guided by the ancient maxim «necessitas legem non habit». Freedom of action in relation to the Russian approach is described by the formula «intra legem» (from the Latin «within the law»): in the event of an emergency situation, a competent person can choose only those managerial decisions that are explicitly provided for in a special regulatory legal act. This approach mediates the classical domestic ideas about administrative discretion as a purely legal category. The authors concluded that in the Russian Federation administrative discretion plays a priority role in the system of ensuring state sovereignty. In this regard, in almost any country, the competence and specificity of the activities of special services officers, if not provoking, at least not preventing the commission of certain unlawful acts against citizens in conditions that threaten the existence of the state itself. It is considered to be a very modest «payment» for state security (but in Western countries it is still much larger than in Russia).