The Use of Discretion in German Law
In the Federal Republic of Germany the exercise of administrative discretion is more narrowly confined than in the United States. The German attitude toward the use of discretion reflects concern about the proper division of legislative and executive functions, the protection of individual rights, and the maintenance of a state based on the rule of law. On the other hand, because of the complex problems of the German welfare state, it is recognized that administrators should be given a degree of discretion in weighing special circumstances in individual cases. Judge Pakuscher outlines the manner in which these conflicting attitudes about the use of discretion have been reconciled doctrinally and have been accommodated through a system of specialized administrative courts exercising limited review of executive decisions.