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Discretion In Legal Decision Making Essay

2468 words - 10 pages

Discretion In Legal Decision MakingBeleid is a Dutch concept, difficult to translate, that is an integral part of Dutch culture and society. The English equivalent, policy, covers only half of its meaning. The definition of beleid, according to an authoritative dictionary of the Dutch language, refers to a set of contradictory connotations: on one hand, beleid means to manage and administer (besturen) based on principles and policies. This would allude to top-down planning if a second meaning were not implied simultaneously, that is, considerate treatment (bedachtzaamheid), preferably by hearing all those concerned and giving them a say. Strictly speaking, these connotations contain opposites: either one can take decisions against the wishes of at least some of those concerned or one can come to an agreement with mutual consent, which implies a nondecision in the case of a veto or resistance. In theory and practice, beleid is a mixture of both.Beleid is the art of rule making and rule implementation in context. The legalistic model of law is always formulated top-down: law binds public agencies, which should not do anything not within the law. The concept of beleid is the expression of a bottom-up strategy, either by the managers of implementation agencies who formulate guidelines or by street-level officers who have to render rules and guidelines "workable" in their daily practice. As complex organizations, government agencies tend to specify their mission in terms of beleid, sometimes vaguely as declarations of intent, sometimes explicitly as guidelines.Of course, civil servants and the police everywhere resort to such informal strategies. What differentiates the Dutch situation may simply be the publicity and legitimacy with which they do so. Instead of being forced to maintain a façade of strict legalism, lowerlevel agents enjoy discretionary power and formulate their beleid. It may achieve quasi-legal status as a yardstick for the performance of a public agency.Informal Pragmatism and the Sliding ScaleTo better understand beleid, one must assess the internal legal culture in the Netherlands. While external legal culture refers to the legal consciousness of the people at large, internal legal culture refers to the opinions about law among the legal professionals, "the values, ideologies and principles of lawyers, judges and others who work within the magic circle of the legal system" (Friedman 1975: 194). Because of its nonlegalistic leaning, one can characterize Dutch internal legal culture as "informal pragmatism." A basic tenet is that a rule should only be applied if some goal is served by it, thus not for its own sake. Dutch policy makers, civil servants, and legal practitioners are very concerned about the adverse effects of too strict a rule enforcement (for example, leading to black markets and deviant subcultures). Rules cannot control everything, and compliance needs social agreement; these are the dominant feelings....

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