Professional Discretion and Accountability in the Welfare State

abstract

The discretionary powers of welfare state professionals are in tension with the requirements of the democratic Rechtsstaat. Extensive use of discretion can threaten the principles of the rule of law and relinquish democratic control over the implementation of laws and policies. These two tensions are in principle ineradicable. But does this also mean that they are impossible to come to grips with? Are there measures that may ease these tensions? We introduce an understanding of discretion that adds an epistemic dimension (discretion as a mode of reasoning) to the common structural understanding of discretion (an area of judgment and decision). Accordingly we distinguish between structural and epistemic measures of accountability. The aim of the former is to constrain discretionary spaces or the behaviour within them while the aim of the latter is to improve the quality of discretionary reasoning. The focus in this article is on epistemic measures that are internally related to the main characteristic of accountability, namely justified use of discretionary power.