Discretion is Fractal

Last week, I made a presentation at the Leiden University conference ‘Political Legitimacy and the Paradox of Regulation’ under the admittedly esoteric title ‘Discretion is Fractal’. Despite the title, my point is actually quite simple: one cannot continue to model, conceptualize and measure (administrative or legal) discretion as a linear phenomenon because of the nested structure of legal norms which exhibits self-similarity at different levels of observation. And, yes, this means that law is fractal, too. In the same way there is no definite answer to the question ‘how long is the coast of Britain‘, there can be no answer to the question which legal code provides for more discretion, unless a common yardstick and level of observation is used (which requires an analytic reconstruction of the structure of the legal norms).
The presentation tries to unpack some of the implications of the fractal nature of legal norms and proposes an alternative strategy for measuring discretion. Here is a pdf of the presentation which I hope makes some sense on its own.

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