Dignity and Discretion

In his influential study, ‘Property, Authority and the Criminal Law’ in eighteenth-century England, Douglas Hay highlighted the importance of judicial discretion for maintaining the power, position and status of local justices. Far from being an irrational mess and ineffective form of law enforcement as older, traditional histories had suggested, ¹ Hay argued that the unreformed English criminal justice system was effective in preserving the social order precisely through a lack of technical rationality. Local justices, in other words, valued what seemed to be irrationalities in the criminal justice system, as it enabled them to exercise their power in a discretionary manner and reinforced paternalism, deference and terror within their communities. ² For Hay, and a generation of scholars influenced by his writings, this informal, discretionary system of law enforcement was subsequently transformed by nineteenth-century criminal law reforms, the rise of summary justice and the move towards a more centralised and impersonal system based on greater certainty of prosecution and formalisation in legal procedure. ³ In recent years, the importance of discretionary justice has been widely recognised by historians as being integral to the workings of the English criminal justice system at both a summary and high court level. ⁴ However, whilst acknowledging the contribution and quality of Hay’s penetrating analysis, other scholars have questioned aspects of his interpretation, not least the extent of change that criminal law reforms heralded. As Jennifer S. Davis has argued, ‘the continuities between eighteenth- and nineteenth-century law enforcement were at least as important as the contrasts’, with the nineteenth-century magistrate in London dispensing justice, handing out advice and assuming a role that was similar to his eighteenth-century counterpart. ⁵ Similarly, as Carolyn Conley has argued, ‘the findings and actions of the [Victorian] criminal justice system were still primarily determined by the values and priorities of the local community’ despite the move towards greater regularisation and bureaucratic control. ⁶ Moreover, rather than being simply an ideological instrument of the ruling elite, scholarship has emphasised how a range of decision-makers in the judicial process, including victims, utilised discretion to their advantage, ⁷ as well as the role that discretion played in shaping the gender, class and ethnicity biases evident in judicial decision-making. ⁸ Historians have increasingly stressed that magistrates did not simply administer the law in defence of private interests and were not preoccupied with securing convictions. The local justice’s role in English summary courts, it has been claimed, extended to resolving community disputes, ⁹ and providing ‘a poor man’s system of justice’. ¹⁰