The development of judicial oversight of administrative discretion in light of the principle of balancing benefits and harms

Abstract

The balancing of benefits and drawbacks in administrative decisions represents one of the most advanced forms of judicial oversight. Through this approach, the administrative judge evaluates the effects of a decision by weighing its expected benefits against the harms it may cause. If the benefits outweigh the harms, the decision is considered lawful; however, if there is a clear disproportion in favor of the harms, it is deemed unlawful. Traditionally, this balancing process was viewed as part of the administration’s discretionary authority, beyond the scope of judicial review. Courts were limited to reviewing legality in its classical sense, focusing only on the formal and legal aspects of the decision without examining its substantive effects. Over time, however, this approach evolved through judicial practice and legal scholarship. Modern administrative jurisprudence has expanded judicial review to include the assessment of the decision’s effects, giving rise to what is known as the review of the balancing of benefits and harms. Under this form of review, the judge assesses whether the harm caused by the decision is proportionate to the benefits it seeks to achieve, thereby placing limits on administrative discretion.This development marks a significant advancement in judicial control, particularly in the jurisprudence of the French Conseil d’État, where review has extended beyond strict legality toward considerations of proportionality and appropriateness.Accordingly, this study examines this principle in France, Egypt, and Iraq, analyzing its concept, legal nature, areas of application, and relevant judicial rulings, while offering critical insights to support the development of Iraqi administrative