In employing rules so as to contribute to good government difficult decisions have to be made concerning each of the various aspects of rules, and the alternatives to rules have always to be borne in mind. A starting-point in analysing rules is an awareness of the different dimensions that rules possess and it is equally important to separate the technical advantages from the political motives for rule-use.
It is argued here that choosing processes for governing involves more than selecting a particular balance between rules and discretions. Using rules is only one way of exerting control or executing functions within government and discretions can be created or constrained by devices and processes other than rules.
The first important issue in selecting governmental processes is to establish bench-marks according to which evaluations can be made. This is done in Chapter 3 by considering how various rationales for justifying powers and processes have been dealt with in the period since Davis brought the notion of discretion to public awareness. It is argued in Chapter 3 that governmental processes can best be evaluated by making reference to a language of justification and to five rationales for claiming support. These rationales are all in themselves contentious but there is said to be nothing fatal in contention. Indeed, it is stressed that contention lies at the heart of seeking legitimation.
In applying such rationales to the body of secondary and tertiary rules encountered in British government it is remarkable how weak many potential claims to legitimacy are. Secondary legislation, for example, often lacks clear authorization, it is subject to weak systems of accountability and control, and the participatory rights of affected parties are often ill protected. These problems are all the more severe in relation to tertiary rules and where secondary or tertiary rules are