Discretionary Justice:Political Culture and the Death Penalty in New South Wales and Ontario, 1890-1920

Although justice and discretion have coexisted for centuries, their rela-tionship in modern bureaucratic settings is uneasy. To legal minds trainedin the precepts of formal rationality, justice is associated with precise rulesand strict measurement, whereas discretion connotes idiosyncratic modesof governance typical of premodern polities. Since the Enlightenment,successive waves of reformers have tried to bind law to the stiff logic ofrules, but discretionary administrative procedures have persistently bedev-illed their projects. Even the most ruthlessly legalistic regimes allow scope,often unintentionally, for individualized judgments and the modificationor annulment of punishment. Apparently the chief difference betweentraditional forms of legal decision-making, where Justice's eyes remain wideopen, and modern bureaucratic procedures, where that noble lady is blind,is that formalistic, rule-bound justice aims to constrain discretion, yet nevercompletely contains it