3
Rules, Discretion, and Legitimacy

Rules have often been advocated as a means of controlling governmental discretions.1Indeed, when discussing how a governmental activity should be carried out there is a strong temptation (especially for lawyers) to ask: 'Should this activity be governed by rules or discretion?' Assessing governmental processes involves, however, far broader issues than are encompassed in the 'rules versus discretion' debate. The operation of government gives rise to a host of questions concerning the exercise of power and the acceptability of various means to control or facilitate the exercise of that power.

Using governmental rules is one way of controlling or executing governmental functions but it is by no means the only one. Alternative controls include accountability to variously constituted bodies; scrutiny, complaints, and inspection systems; arrangements to ensure openness (such as requirements to publish performance indicators and statistics) and schemes for giving effect to consumer's views. Alternative executive devices include arbitrations, managerial decisions, inquiries, adjudications, contracts, and negotiations.2The notion of discretion is, moreover, unduly narrow if seen only in the context of rules. As Keith Hawkinshas pointed out, lawyers may see discretion as constrained only by legal rules but social scientists are likely to see discretion as shaped also by political, economic, social, and organizational forces outside the legal structure.3The relationship between rules and discretions, may, of course, often be so close as to constitute a blending. Discretion suffuses the interpretation and application of rules (as in the processes of defining the meaning, relevance, and scope of

____________________
1
Notably by K. C. Davis in Discretionary Justice( 1971).
2
Primary legislation is a further option not to be overlooked. On the variety of governmental modes of control and execution see generally C. Hood, The Tools of Govemment( 1983).
3
K. Hawkins, "'The Use of Legal Discretion: Perspectives from Law and Social Science'", in K. Hawkins(ed.), The Uses of Discretion( 1992).

-16-

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