European Legal Studies Center
The arguments that may be raised in support of a claim of abuse of discretion must go to the legality, not just the wisdom or advisability, of administrative action. Though the judge is responsible for seeing to it that the government acts in conformity with law, he may not put himself in its place or interfere in its functioning. His job is not to determine whether in a given case a certain administrative official ought to have acted and, if so, in one particular way. He has neither the means nor the materials for judgments of this sort, nor does he have responsibility for administrative action. Should he undertake to control its wisdom or advisability, he would risk impairing the normal flow of government.
These are nearly the words an American court might use in declining to rule on the merits of administrative action. To be more exact, the language has the ring of a dissenting opinion in which a judge accuses his brethren of venturing beyond the domain of the law into that of policy, where they have no business being. The words actually come from three members of the Conseil d'Etat, France's closest analogy to a supreme administrative court, attempting to describe one aspect of that institution's important, yet delicate, role in French public life.
George A. Bermann,
The Scope of Judicial Review in French Administrative Law,
Colum. J. Transnat'l. L.
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