Discretion from a Legal Perspective

Bureaucracies Under Judicial Control? Relational Discretion in the Implementation of Immigration Detention in Swiss Cantons

“…The analysis of the varying cantonal use of immigration detention reveals that the different legal criteria do not carry the same weight and are not interpreted the same way in each canton. To understand these different practices, we combined street-level, sociological, and sociolegal approaches focusing on uses of discretionary powers (Bourdieu, 1990; Buffat, 2015; Hawkins, 1992, 2003; Lascoumes & Le Bourhis, 1996; Mascini, 2020; Tata, 2007) and on the relations in which SLBs are embedded (Dubois, 2012; Elias, 1978; Halliday et al, 2009; Mutsaers, 2014). We analyzed the web of relationships in which the cantonal bureaucrats deciding to detain are embedded at the level of law implementation and how these relationships affect their decisions.…”

“…In the same juridical perspective, Dworkin (1977) famously put that discretion “like a hole in a doughnut, does not exist except as an area left open by a surrounding belt of restriction” (p. 31). In this juridical view, discretion is considered a problem as it may threaten the rule of law (Mascini, 2020).…”

“…Discretion is inherent in the use of rules because making sense of them and making choices about their relevance involve interpretative work (Hawkins, 1992). Building on Hawkins’s perspective, Mascini (2020) adds that “decisions can only be understood by reference to their embeddedness in interpretative practices, frames, fields and surrounds,” and that “a connection needs to be forged between the interpretive processes that individuals engage in when deciding a particular case, and forces in the decision-making environment” (p. 130). Thus, in this article, the exercise of discretion is not seen as a “free choice” within the framework and limits set by legal rules because “individual ‘free choice’ may be already, collective, ordered, routinised and structured by phenomena other than the law itself” (Campbell, 1999, p. 80).…”

“…Thus, Halliday et al (2009) have shown that interprofessional relations influence the type of street-level behavior. Consequently, SLBs’ decisions are constrained by the interpretative work and decisions of other actors involved in the decision-making process (Mascini, 2020; Tata, 2007). This is the case in the context of immigration detention, in which discretionary powers are multiple, diverse, and dispersed (Pratt, 1999).…”

“…These bodies of literature challenged the conventional juridical views of discretion, which focus on rules and assume a dichotomy between law and discretion (Tata, 2007). They offer alternatives by substituting the question regarding the formal definition of and limits to discretion by focusing on how bureaucrats and judges use discretion in practice (Mascini, 2020, p. 127), and on the social environment in which their decisions are embedded (Hawkins, 2003). Thus, recent studies have focused on state agents’ practices, how they are shaped by organizational mediations and constraints (Miaz, 2017, 2019), bureaucratic habitus (Affolter, 2021; Alpes & Spire, 2014), and the organization of decision-making processes.…”