Discretionary Acts in the Constitutional Framework of Law

Abstract

The present study denotes the particularities of criteria of discretion in the constitutional framework of law, as from Latin American administrative law it presents great flaws in its structure. Decisions at the head of the executive contain a high degree of discretion that is not consistent with the organic distribution within the state, the constant struggle of modern constitutionalism to guarantee through the operation of checks and balances, leaves the administrative procedure at the mercy of the temperamental right of the nominator, even more, the paraphrase schemes ossified in the procedures, do not allow a greater advance in the constitutional guarantee. Most of the failures in current interpretations are part of natural law and positivist thoughts, which have been maliciously inherited due to the shortcomings of hermeneutics and the difficulty of legitimizing the link between the validity crisis, which is no more that the hegemony of hierarchization, the protection of human, political and social rights, and the crisis of effectiveness, which refers to the existence of infinities of laws and little justice, impunity and lack of order, the regulatory power of the executive and other faculties at the head of the public administration, involve procedures far from the constitutional paradigms of a social state of law.