Matsushita: Schoenbaum and Mavroidis: The World Trade Organization: Law, Practice, and Policy
| Date | 01 May 2004 |
| Author | Bongi D. D. Radipati |
| Published date | 01 May 2004 |
| DOI | http://doi.org/10.1111/j.1468-2230.2004.498_3.x |
REVIEWS
Loraine Gelsthorpe and Nicola Pad¢eld (eds),Exercising Discretion: Decision-
Making in the Criminal Justice System and Beyond,U¡culme Cullompton:
W|llan Publishing, 2003, 228pp, hb d30.00.
This book, which arose out of two seminars devoted to the exercise of discretion
in 2000^2001, brings together a number of academics who have independently
researched and published on aspects of the criminal justice system: most notably
Loraine Gelsthorpe, writing here on decision-making in the youth justice arena;
Nicola Pad¢eld, on the release of life sentence prisoners; Alison Leibling, onthe
exercise of discretion by prison o⁄cers; and Adrian Grounds, who has contribu-
ted to two chapters on decision-making concerning mentally disordered o¡en-
ders.The chapters towhich they have contributed, for all are co-authored,re£ect
not only their pre-existing areas of expertise, but the unique experience of their
collaborators, three of whom had completed or were completing their PhDs in
the ¢eld. It is no surprise therefore that these chapters are rooted in empirical evi-
dence.Together with a fascinating and timely chapter by Leanne Weber, on the
decision-making of immigration o⁄cers about asylum seekers, they constitute a
treasure-trove ofi nsightful detail about the factors that appear to have in£uenced
the exerciseof discretion in a numberof relatively hidden decision-making con-
texts.In so doing, theeditors, lookingfrom the perspective of the decision-maker,
have addressed‘the essential‘‘blur’’ at the centre of their enterprise’and more than
met one of the book’s objectives, namely ‘to tease outsome of these uncertainties
with which decision-makers operate’ (p 15). The book also bene¢ts from an
account by DavidThomas of the development of judicial discretion in sentencing.
This historical analysis contrasts markedly with the other included areas since the
act of sentencing is both more public and has been subject, asThomas notes, to a
sophisticated system of regulation (part statutory, part self-imposed). Yet senten-
cing curiously remains one of the most contentious and arguably misunderstood
(by the public at least) areas of discretionary decision-making. Finally, Keith
Hawkins, well-known for his seminal contributions to the theory and practice
of the exercise of legal discretion, contributes to justifying the book’s ‘beyond’
criminal justice title, for his cogent arguments about how discretion should be
studied andu nderstood are as applicable outwith criminaljustice contexts asthey
are within them.
However, at the heart of the book lie a numberof paradoxes, in part stemming
from Hawkins’ analysis and critique. Hawkins notablyasserts that‘discretion, like
matter, is i ndestructible’ (p 204).Yet the editors identify thebook’s ‘modest aim’ as
being ‘to add to a descriptive understanding of the uses of discretion in contem-
porarycriminal justice and related circles. In this way we believe that it will help
to keep debates about the meaning and uses of discretion alive’ (p16). Are such
debates, as this implies, endangered? From the chapters included here, it would
seem that the enterprise of charting the exercise of discretion in both accessible
and less accessible domains has only just begun. The second paradox is also
rThe Modern LawReview Limited 2004
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(2004) 67(3) MLR 524^540
discernible in Hawkins’ contribution. Knowledge of the various factors that
might in£uence decision-makers, both properly and improperly, is not the same
thing as an understanding of why they make the decisions theydo.The latter has
to be the central objective of decision-making research. The empirical chapters
shed light on the in£uences; whether they can do the same for the‘why?’ question
is unclear. For decision-makers are subject to their own experiences and track-re-
cords, thus each will have his or her own decision-frame, which, according to
Hawkins, constitutesa unique structure of knowledge, experience andvalues that
provides an interpretative toolfor the decision-maker. In short, each decision-ma-
ker will ‘see’ the case di¡erently and so each case cannot be treated solely on its
own merits. Accordingly, the empirical chaptersshow admirably whatit has been
possible todo, and yet they all fall shortof Hawkins’ideal prescription.
Hawkins also draws attention to what he calls the three silences of research,
silences that apply to a greater or lesser extent to each of the chapters.Whilst I
cannot do justice to these here, they are, crudely: the failure to focus on wider
forces, namely, not only the decision-maker’s ‘frame’ but also their ‘¢eld’ (factors
such as the prevailingpolitical temperature,legal and organisationalmandates and
other features of the surrounding context); the importance ofothers with i nterests
in the decision,such as the subjects of the decisionand its potential audiences; and,
¢nally, the in£uence of parallel and serial decision-making (to what extent are
other decisions anticipatedand do prior decisions limit the true exercise of discre-
tion?) To this ¢nal factorcan be added the questions: whatdi¡erence does it make
if decisions are made by individuals or in a group setting?And what priorexperi-
ence does the decision-maker have in dealing with similar cases? Then there are
questions about the extentto whichthe research uncovers mere correlations rather
than the true causal basis of decisions, and whether from the decision-maker’s
perspective decisionsare instrumental orexpressive. In short, Hawkinsestablishes
a correct but impossible agenda; will this deter future studies of the exercise of
discretion (and hence contribute to its death)? I doubt it; for too much research
now risks beingconducted in partial ignorance of what has gone before. So the
endeavour will be launched and come back into port, if not fatally holed, at least
subject to the criticism of ‘if only the researchers had asked. . . . . .’. So, whilst
these empirical studies help us to know more, the context inwhich they are set ^
Hawkins’ long list of questions ^ also causes us to question how certain we are
aboutwhatweknow.
A third paradox centres on the in£uence of i ndividual decision-makers. There
appears to be agreement that individuals can exert a powerful in£uence on the
outcome of decisions across a number of di¡erent settings; within these chapters
Holloway and Grounds chart the critical in£uence of the Responsible Medical
O⁄cer (and, wherepresent, of independentpsychiatricopinions) on the decisions
of Mental Health ReviewTribunals, andWeber’s work with immigration o⁄cers
is equally compelling in this respect. Indeed, I was intrigued by reference to the
workof Kelman and Hamilton on socio-political orientations towards authority
(Crimes of Obedience: Toward a Social Psychology of Authority and Obedience (1989)).
These researchers concluded that three scales captured people’s approach towards
authorityand, whilst many people were a combination of all three, some indivi-
duals were marked out by their preponderance to be either rule, role or value
Reviews
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