Human Rights in Administrative Decision-making III: Exercising Discretion and Judgement

This is the third post in a series. The first two can be found here and here.

Given the inevitability of administrative discretion and judgement, how ought it be exercised? I argue in this section that it would be unrealistic and inappropriate for front-line officials to be expected to reason as lawyers would.

It would be unrealistic to expect front-line officials to think like lawyers because, most of the time, they are not trained lawyers. The empirical evidence suggests, moreover, that organizational and professional culture dominates consideration of how front-line officials see their roles: “street-level workers are highly sensitive to coworkers and immediate supervisors, including those in their work sites and related agencies”.[1] Culture here can refer to the professional culture of the front-line official (for instance, lawyers working in public bodies may identify with the legal profession as well as with the body they work for) or the decision-making body she serves: “Street-level workers have strong occupational identities”;[2] and they may “describe their jobs as callings”.[3]

In an illuminating discussion of discretion, Martha Feldman explains that while “[l]aws, regulations, organizational rules, and managerial dictates all specify appropriate behaviors”, these mechanisms “are not sufficient in the case of discretionary behavior”.[4] She notes that formal training – through which “[p]ractitioners learn to value particular skills and means of doing their work and to believe that what they have learnt constitutes the right way to do their work”[5] – informal socialization – through which the “modes of operation” of the organization are communicated[6] – and routines – “patterns of behaviour engaged in by more than one person in response to a common stimulus”.[7] The “unique markers” of “occupational identities” have the effect of “establishing unwritten but enforceable expectations of the ‘good’ worker and defining their jobs’ key tensions and contradictions”.[8] These are important supplements to formal limits on authority, with particular characteristics: “These limits are not absolute or determinate. They do not prescribe specific behaviors. Limits are interpreted differently by different people. People do not always agree about whether the limits have been transgressed. Thus, the limits cannot be enforced through sanctions, and they cannot be expressed in formal rules”.[9] Notwithstanding their indeterminacy and fluidity, they may, by virtue of their immediacy, be more robust than formal limits in some or even many cases. Culture here includes the broader political setting, whichmay be relevant. For instance, in Halliday’s study of housing decision-making in local authorities, “[t]he local political environment of antipathy towards the homeless” was observable in organisational priorities and “also felt more directly in terms of the supervision of caseworkers by their team leaders”.[10]

Give the reality of how decision-makers actually exercise discretion and judgement inculcating deep knowledge of – say – the principles of statutory and constitutional interpretation in front-line administrative officials would be very difficult. Not only are the technicalities of legal interpretation hard to master, this knowledge (if inculcated) would have to compete in any event with the cultural norms embedded in the decision-making environment.

It would also be inappropriate to expect front-line decision-makers to master the details of legal interpretation.[11] Where a legislative choice has been made to delegate authority to bodies other than courts, it ill becomes courts to insist on the application of judicially crafted doctrine to circumscribe the authority of administrative decision-makers. Such an approach holds non-lawyers to legal standards and forces them to adopt an interpretive mindset that is not necessarily their own.[12] The upshot is that all administrative decision-makers have to think like lawyers, even if the whole point of empowering them in the first place was to avoid having decisions made by people who think like lawyers.

Mine is not a counsel of despair. The empirical evidence does not suggest that attempts to deviate from authority are treated lightly: “By substituting pragmatic judgments for the unrealistic and untenable views of those with formal and legitimate authority, street-level workers view themselves as acting responsibly. They are taking on the burden of making moral and pragmatic judgments that alter citizens’ everyday lives, justifying decisions and actions as workable improvisations of unrealistic rules, laws, and procedures”.[13] Indeed, street-level workers may make good faith efforts to square their sense of what is appropriate in a particular concrete context with the requirements of rules, developing for example “an elaborate account to enfold her moral judgment with her legal obligations”.[14] This emphasis on good faith is critical, as we shall see in the next section. For now, the important point is that whilst it is unrealistic and inappropriate to expect front-line administrative officials to exercise discretion and judgement as lawyers would, it is nonetheless entirely realistic and wholly appropriate to expect them to make good faith efforts to remain within and to further the objectives of the applicable legal framework. Not, in other words, taking the decisions they imagine legally trained people would take, but exercising discretion and judgement in good faith in the context of the statutory or regulatory scheme at issue.

[1] Steven Maynard-Moody and Michael Musheno, Cops, Teachers, Counselors: Stories from the Front Lines of Public Service (University of Michigan Press, Ann Arbor, 2003), at p. 8. See also Simon Halliday, Judicial Review and Compliance with Administrative Law (Hart, Oxford, 2004), at p. 59, describing a “culture of suspicion” on the part of local authority officials towards housing applicants.

[2] Steven Maynard-Moody and Michael Musheno, Cops, Teachers, Counselors: Stories from the Front Lines of Public Service (University of Michigan Press, Ann Arbor, 2003), at p. 51.

[3] Steven Maynard-Moody and Michael Musheno, Cops, Teachers, Counselors: Stories from the Front Lines of Public Service (University of Michigan Press, Ann Arbor, 2003), at p. 122.

[4] Martha S. Feldman, “Social Limits to Discretion: an Organizational Perspective” in Keith Hawkins (ed.), The Uses of Discretion (Oxford: Clarendon Press, 1991), at p. 176.

[5] Martha S. Feldman, “Social Limits to Discretion: an Organizational Perspective” in Keith Hawkins (ed.), The Uses of Discretion (Oxford: Clarendon Press, 1991), at p. 176.

[6] Martha S. Feldman, “Social Limits to Discretion: an Organizational Perspective” in Keith Hawkins (ed.), The Uses of Discretion (Oxford: Clarendon Press, 1991), at p. 178.

[7] Martha S. Feldman, “Social Limits to Discretion: an Organizational Perspective” in Keith Hawkins (ed.), The Uses of Discretion (Oxford: Clarendon Press, 1991), at p. 180.

[8] Steven Maynard-Moody and Michael Musheno, Cops, Teachers, Counselors: Stories from the Front Lines of Public Service (University of Michigan Press, Ann Arbor, 2003), at p. 52. Other identities may also influence how street-level workers see their roles:

At least in the urban work sites of our study, the politics of bureaucratic stratification, particularly managers versus workers, is being supplanted by a complex politics of identity in which workers and managers take up belonging in one or more of the many identity enclaves. These enclaves provide a sense of place and a site for the accumulation of power. Holding these work sites together becomes more of a challenge. Workers retain a sense of common belonging related to their occupational identities. Bureaucratic norms and those who define them continue to communicate the ranks of the organization and define the structure of rewards, thus keeping people in line. But as the absolute dominance of traditional enclaves – particular white male heterosexual networks – are challenged and power is more broadly distributed, some work sites, like some urban neighborhoods, are generating local cultures where order has to be negotiated amid difference.

Ibid.,at p. 53. Indeed: “These sources of identification of particularized citizens are as defining of relationships as the bureaucratic identifiers of worker, supervisor, and manager or the occupational identifiers of cop, teacher, and counselor”. Ibid, at p. 67.

[9] Martha S. Feldman, “Social Limits to Discretion: an Organizational Perspective” in Keith Hawkins (ed.), The Uses of Discretion (Oxford: Clarendon Press, 1991), at p. 182.

[10] Simon Halliday, Judicial Review and Compliance with Administrative Law (Hart, Oxford, 2004), at p. 98.

[11] What follows builds on Dunsmuir’s Flaws and Unreasonable Interpretations.

[12] See, e.g.,Jerry L. Mashaw, “Norms, Practices, and the Paradox of Deference: A Preliminary Inquiry Into Agency Statutory Interpretation” (2005) 57 Admin. L. Rev. 501.

[13] Steven Maynard-Moody and Michael Musheno, Cops, Teachers, Counselors: Stories from the Front Lines of Public Service (University of Michigan Press, Ann Arbor, 2003), at p. 24.

[14] Steven Maynard-Moody and Michael Musheno, Cops, Teachers, Counselors: Stories from the Front Lines of Public Service (University of Michigan Press, Ann Arbor, 2003), at p. 87. On the other hand: “Legal and bureaucratic reasoning is offered to justify extraordinary actions, but these justifications often appear as a rubber band stretched around moral decision making, binding but not determining the decisions”. Ibid., at p. 88. This is less necessary where citizen-clients are viewed as unworthy. In such situations, “street-level workers become stringent rule followers, trying to limit services to the minimum allowable. Rather than cutting corners, they follow every procedure”. Steven Maynard-Moody and Michael Musheno, Cops, Teachers, Counselors: Stories from the Front Lines of Public Service (University of Michigan Press, Ann Arbor, 2003), at p. 151. This recalls Grant Gilmore’s quip in the Ages of American Law at pp. 110 that “In Hell there will be nothing but law, and due process will be meticulously observed”.

This content has been updated on December 29, 2019 at 21:19.