Vol. 4 No. 7 (July, 1994) pp. 96-98
THE USES OF DISCRETION by Keith Hawkins (ed.). Oxford: Clarendon
Press, 1992.
Reviewed by Albert R. Matheny, Department of Political Science,
University of Florida.
Sometimes reading an edited volume in the social sciences gives
one the impression that the editor has conceived of a wonderful
way to reward friends or curry favor with influential people in
his or her corner of the discipline. The chapters often present
no integrated whole, but are rather disjointed reprises of
research long-since reported elsewhere. The contributions are
patched together with perfunctory introductions and conclusions
by the editor. The volume sells to academic libraries, just
enough for the publisher to break even, and happy contributors go
home with another line on their vitae.
Such is definitely not the case with Keith Hawkins' collection of
essays on discretion, part of the Oxford series on socio-legal
studies. Reading this extensive volume is the equivalent of
having spent an entire semester in a seminar on the subject,
taught by some of the best people in the field. The inquiry is
both broadly-based and deeply-referenced. Its intent is to bring
together legal and social-scientific thinking about law and
discretion, particularly as this thinking is played out in the
administrative/regulatory realm. The volume succeeds in this task
without necessarily advancing the field much beyond where it has
been for at least a couple of decades. But this is no backhanded
compliment. Actually, the issue of discretion, per se, has really
languished recently, a point made clear in H- awkins'
introduction. This book should easily rekindle academic interest
in a vital, but intimidating, subject. In fact, I would suggest
that any fledgling researcher addressing regulatory discretion in
either normative or empirical terms must first come to grips with
the thinking presented here. With exceptionally thoughtful
interstitial comments, Hawkins has assembled nearly all the
troops in the debate about discretion and law and has them poised
for another charge. This book, in effect, clears the field.
So what might this new thinking about discretion entail?
Basically, Hawkins and his contributors map out an understanding
of law and discretion which collapses the distinction between the
two, as they apply in the regulatory setting. I came away from
the book thinking of law in a fresh way, as a concept that can
exist only relative to discretion. By this, I mean that law is
simply the discretionary choices imposed upon one level of
society by a higher, or more powerful, level of society. Further,
these discretionary choices are best understood, not as
"free choices," but as structurally constrained
behaviors which can be appreciated by both legal and
sociological, normative and empirical analysis.
Perhaps a better way to express this is to say that Hawkins and
his contributors reconceptualize Dworkin's famous
"doughnut" explanation of discretion. Dworkin argues
that discretion is nothing more than the "hole of the
doughnut" which takes shape only because of the surrounding
and restrictive legal pastry. The scholars in this volume
collectively assert the contrary, i.e., that rules (as law)
"appear" only when viewed through ascending layers of
discretionary decision-making. Law then is not an epiphenomenal
doughnut, but rather an emergent construct, useful for
legitimizing the power with which discretionary decisions are
made and is real, perhaps, only in the sense that it reflects the
consistency which those decisions are made over time.
Charting new territory for the relationship between law and
discretion requires some careful editing, and Hawkins weaves
together the strands of law and social science in a way that
engages both audiences, although there is little question that
the research reported here will resonate best among social
scientists. He begins with his own overview essay -- a strongly
theoretical literature review which lays a nice foundation for
the articles that
Page 97 follows:
follow. Two legal treatments of law and discretion, by Carl
Schneider and John Bell, respectively, follow . The former does a
very interesting job of comparing common- and civil-law notions
of law and discretion, and then lays out a nice typology of
discretionary decision-making which sets the tone for the volume.
It stresses the decision-making context as crucial in
understanding the relationship between rules and discretion. Bell
continues this inquiry while introducing crucial concepts of
power and legitimacy into the discussion
Next comes the heart of the volume -- five articles by social
scientists (four by sociologists and one by a political
scientist) which generally do a good job of developing the
sociological response to conventional legal inquiry into
discretion and then carrying that response into the field. M. P.
Baumgartner and Martha Feldman deal with the sociological and
organizational perspectives on discretion, respectively.
Baumgartner's article makes the appropriate point that
discretionary decisions are predictable in sociological terms,
when formal/legal analysis sees them as individually (free)
choices diverging from legal rules. I felt this was sort of a
straw man argument, since it overstates the degree to which
"sociological laws" (the author's term and a reference
which conveys the article's rather trenchant tone) predict
discretionary behavior and understates the flexibility of the
legal analyses of the subject. The point could have been made in
a more nuanced fashion, in keeping with the rest of the book.
Martha Feldman does a nice job framing the organizational
literature on discretion, although there are glaring omissions in
her discussion. For example, there is no mention (in this or any
other article in this volume) of the very relevant works of
Eisenstein, Jacob, Nardulli, and Flemming, all of who have made
major contributions (and some fairly recently) to understanding
the organizational/contextual basis of discretionary decision
making in the criminal justice system. An even greater omission,
beginning with this article and running through the other
articles as well, is any mention of the contingency theory of
James Thompson, or for that matter, the works of Lawrence Mohr or
Victor Thompson. Their seminal efforts are so relevant to
understanding context/environment in discretionary decision
making that the articles of Emerson and Paley and Peter Manning
(which otherwise effectively focus on "organizational
horizons" and "frame theory" in understanding
discretion) should seem strangely redundant to the many of us who
have applied organization theory in judicial settings. How soon
we forget . . . , and these authors shouldn't have!
The real gem in this section of the book is Richard Lempert's
unpretentious "generational" study of a public housing
eviction board in Hawaii. He shows very effectively how
discretionary decision making can be shaped politically over time
by superiors (in this case, the Housing Authority) manipulating
decision makers' accountability for their discretionary actions
(one of James Thompson's big points, by the way). Combining this
article with Joel Handler's wonderful normative and empirical
discussion of how discretion might be shaped in the future gives
hope that a new wave of research on discretion led by these two
and the joint efforts of Hawkins and Manning will be very
productive. Handler's contribution, which extends his
path-breaking work of the late 1980s, helps to wrap up the volume
in its last section. This section also includes excellent studies
(balancing normative and empirical inquiry) by Roy Sainsbury (on
British social security decision making) and Nicola Lacey
(returning to the jurisprudential issue of discretion) which
reaffirm the volume's strongly contextual emphasis.
In summary, this book is now the standard for inquiry on
discretion and the law. No legal scholar will be able to ignore
its challenge to the conventional wisdom, nor will any social
scientist want to begin research on the subject without it.
Hawkins has long been an innovative scholar in the area of
regulation, and this volume provides a clue
Page 98 follows: as to why. He has a comprehensive understanding
of the key issue in his field, save for those omissions mentioned
above. He and his contributors have shared the wealth in this
volume in a profoundly refreshing way. I challenge anyone to read
Lempert's or Handler's piece and not see discretion in a new
light. Compare that challenge to what you've felt reading other
edited volumes lately, and you will understand my enthusiasm for
this book.
Copyright 1994