This article re-examines the traditional account of administrative decision-making under wide conferrals of statutory power. The received wisdom in such cases is that public officials exercise “discretion”, usually defined as freedom of choice. Based on a doctrinal study of the English planning system and related case law, this paper contends that the notion of discretion as choice obscures one of the defining characteristics of modern government. That is, the making of public decisions tackling practical problems with intelligent and expert judgement under legal standards set out in legislation and further developed by the courts. More widely, the paper discusses the foundational role of tacit knowledge and decision-making expertise in public administration.

This paper considers a planning dispute that surrounded the construction of a Jewish religious installation (called an eruv) in the public urban space of an Australian suburb. The aim of this case-study is to examine the role of law in regulating Jewish difference – a topic that has to date received little attention in the socio-legal literature concerned with the governance of religious diversity. In analysing residents’ objections to the eruv, the paper explores long-standing anxieties about Jewish particularity in Australia and beyond as they surfaced in opposition to the eruv. It shows how the law continues to exclude certain forms of Jewish difference that are perceived as transgressing dominant religious and racial norms. Moreover, the paper highlights the particular ways in which planning law assigned value to these anxieties and legitimised the marginalisation of Orthodox Jews, emphasising the significance of local law as a site for exclusion and inequality.