Theme 1: discretion in the delivery of public services
We have attempted to begin the module by looking at perspectives that are utilized across a range of areas of empirical enquiry. Initially, we looked at research connected with individuals' interaction with law through disputes, pairing this with a practical seminar on qualitative research methods; more recently we have begun with a look at the area of discretionary decisionmaking, using material from administrative law. Our approach has changed over time, in part as a response to feedback from students which indicated that launching into practical research methods at the beginning was too challenging, as well as the changing availability of expertise (bearing in mind the school's research leave policy).
The first seminar pair concerned the ways in which discretion is exercised. We approached the theme in this way in order to provide a link - a bridge - between our students' knowledge and understandings of public law and socio-legal studies. Our purpose has been to demonstrate to our students that, although discretion may be broad, there are always factors which narrow down the exercise of discretion. Internal policies may do so; as may the institutional effects of bureaucracies, both of which - to put it broadly - narrow down the range of possible decisions and reasons. External factors, such as audit and accountability, also have an impact. On the other hand, clear, fixed rules, which appear to have no element of discretion to them, perhaps counter-intuitively may well allow for discretion at the margins. The binary divide between rules and discretion may, in fact, be illusory. In this pair of seminars, then, the very concept of discretion is interrogated along with its exercise.
The first seminar concerned bureaucratic discretion and issues of control; the second required students to think about the developing literature on legal consciousness as a research methodology. The first seminar contained the usual material that one might expect on discretion, as well as a particular focus on street-level bureaucracy. Students were challenged to think critically about the relationship between law, rules and discretion. One key issue for discussion in this seminar was whether 'managerialism' means the death of discretion.
In the second seminar, students were, as already indicated, introduced to part of the legal consciousness literature. They were informed in the reading materials how this literature differs from other aspects of socio-legal studies. Box 1 shows the characterization that was used.
Box 1: legal consciousness as a research method
The socio-legal 'legal consciousness' literature seeks to move away from a 'law-first' paradigm which places law and lawyers in the forefront, turning instead to ordinary life and everyday encounters with law. Researchers are as much interested in what people do not think about law as what they do think, examining how taken-for-granted understandings of law shape possible interactions with (and resistances to) legalized mechanisms and institutions. For Patricia Ewick and Susan Silbey, two of the key proponents of this approach, legal consciousness work means exploring
commonplace events and transactions to seek the web of legality, conceiving of law not so much operating to shape social action but as social action ... to understand how law emerges from these local settings and interactions with the ontological integrity it claims for itself and that socio-legal scholars have for so long attributed to it. (1998, pp. 34-5)
David Cowan's study of homeless persons units suggested that a focus on the institutional encounter and the nature of the communications between welfare applicant (in this case, a person applying for social housing because of homelessness) and welfare bureaucrat (the housing officer) can illuminate how the applicant forms ideas about the nature of the administrative processes, and the possibility or value of challenging the decision (Cowan, 2004). Davina Cooper (1995) moves away from the study of 'ordinary people' to look at how the cultural conditions in local government develop understandings of legality in professionals. In Silbey's most recent work, she suggests that researchers should move to investigating 'the ground of institutional practices'. In institutions, she suggests 'cultural meaning, social inequality, and legal consciousness are forged' (2005, p. 360).
All our seminar materials incorporate questions for discussion. In this seminar, students were particularly engaged by the questions: 'Where is the "law" in legal consciousness studies?' and 'Does legal consciousness scholarship help us understand better the exercise of discretion in institutional settings?'