This article focuses on the relationship between administrative discretion and the rule of law, showing that administrative discretion properly conceived is not only compatible with a particular understanding of the principle of the rule of law but could also become a vehicle allowing the executive to express its commitment to that principle. In the author's view, this is possible if, first, discretion is conceived through the metaphor of a dialogue between rulers and ruled; and, second, we endorse a substantive understanding of the rule of law that views all three constituents of the state – legislative, judicial, and executive branches – as involved in the project of preventing arbitrary action by public powers. The article explores these dynamics in the concrete setting of the author's experience as associate dean of a law school, in order both to see how the theoretical model of dialogue translates into practice and to identify the particular aspects of the theory that might require further inquiry and empirical research.

In the great majority of cases, the proper exercise of investigative or prosecutorial discretion presents little challenge and evokes little controversy. In a very small number of “high-profile” cases, however, such discretionary decisions become highly controversial and the subject of intense political, public, and media debate. It is such relatively rare cases that are the focus of this article. In such cases, two critical questions are typically at the forefront of debate: What does “the public interest” in such cases require? And who should have the final say as to what the public interest in such cases requires? The first of these questions typically reveals disagreements as to how the various commonly accepted “public interest” considerations should be applied to the case at hand; the second goes to the heart of the concept of “independence,” alleged to be a fundamental and constitutionally essential attribute of police and prosecutors in making such decisions. This article is concerned less with the details of discretionary decisions themselves than with the “political economy” of prosecutorial discretion, with particular reference to controversial high-profile cases that raise significant “public interest” considerations. Specifically, the article considers who currently does, and should, have the ultimate authority to exercise prosecutorial discretion in such cases, and why, and what such arrangements imply for the prevailing concept of prosecutorial “independence.” The author draws on four recent high-profile cases in the United Kingdom and in South Africa to illustrate the different ways in which these issues have arisen and the controversies that have developed out of attempts to resolve them.

Discretion on the part of front-line border officers is fundamental to exploring how nation-states sort out mobile populations at and near international borders. This discretion involves not only decisions about when, on whom, and on what legal grounds to act but also decisions about when and on whom not to act. Examination of non-actions completes the range of information needed to delineate unequal social sorting by the state. Unequal sorting is specified in the analysis of field materials through a novel prism, paying attention to why and how certain borderlanders are trusted in enforcement settings while others are considered potential risks. The allocation of trust and risk proves interestingly complex, revealing several major processes operating simultaneously, both class and race inequality and the enactment of the territorial nation-state.

A “just punishment” is increasingly structured by actuarial probability frameworks. Actuarial risk technologies are often characterized as having supplanted much of practitioners' discretionary decision making with structured, quantitatively derived decision-making templates. Some scholars maintain that the transition to risk-based penality has led to “deskilling,” “scientification,” and “erosion of professional discretion,” or even to the elimination of criminal justice practitioners' use of professional discretion. This paper uses data from 71 semi-structured, open-ended interviews with criminal justice professionals to analyse how the introduction of risk tools shapes but does not eliminate discretion. We argue that risk tools are not simply imposed on criminal justice practitioners; instead, practitioners actively resist and embrace risk technologies and temper the impact risk tools have on their discretionary decision making. We maintain that the adoption of risk technologies reflects a negotiated process whereby practitioners welcome the professional advantages that these technologies afford while affirming the centrality of experience and clinical knowledge in decision making. We show how practitioners differentiate between the standardization intended by risk assessments and their own experiences and clinical knowledges, and how they exercise their discretion in an effort to mitigate the perceived discriminatory effects of the risk assessment. Thus, although risk tools are appealing to practitioners because their supposed “objectivity” makes them more defensible to the public, the adoption and use of these tools in the context of professional decision making is more complex and contradictory than much of the theoretical literature has assumed.

In Western states, restrictive migration policies over the last 30 years have entailed a shift in the practices of control, leading to the institution of systems of detention at international borders. Border confinement raises substantial issues about fundamental rights; it involves questions of legality and legitimacy, and the definition of new technologies of government. In France, the origins of border detention show how pre-existing administrative practices of detention were legalized through the adoption of “waiting zones,” a new regime of detention that enhanced both conditions of detention and disciplinary control over detainees. This development confronts human-rights activists who have opposed border detention since the mid-1970s with “paradoxical gains” and a tough dilemma: the rights that have been granted by the state to travellers held at the borders are not enough, whereas legalization has opened the way for new control mechanisms. Understanding border confinement involves analysing these paradoxes produced by constant negotiations between the administration, willing to tighten control over its borders, and concerns of certain groups within civil society, willing to defend basic rights and give a legal framework to control practices. In France, the diffusion of penitentiary models of management and the ambiguities of law that this article explores further draw together the conditions for administrative processes of legal exclusion. What do such processes teach us about evolving regimes of government within rights-based liberal systems?