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

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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

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Copyright 1994