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Law and the Parameters of Acceptable Deviance

NCJ Number
Journal of Criminal Law & Criminology Volume: 97 Issue: 1 Dated: Fall 2006 Pages: 49-100
Mark A. Edwards
Date Published
52 pages
This article explores the construction of parameters of acceptable deviance (PADs) and investigates the application PADs to a range of legal phenomena, including racial profiling and jury nullification.
The main argument is that behaviors are governed by neither laws nor norms, but rather by the unacknowledged parameters of deviance that are acceptable to both the regulated and those that regulate them. These PADs are constantly evolving as laws and norms evolve within society. Furthermore, PADs, it is argued, are set through a continuous process of negotiation-through-practice between the regulated and their regulators. The author notes that the establishment of PADs is an inherently dynamic (changing) and democratic process in which terms of behavior, although formally unacknowledged, are always being negotiated through practice. The analysis shows that those charged with enforcing formal law frequently exercise discretion in a manner that enforces norms over formal legal doctrines. Likewise, those who are charged with complying with formal law also often exercise discretion so that their manner complies with norms instead. The author argues that it is deviance informed by norms and anchored by law that occurs within the parameters of acceptability. The PADs, then, are the limits of behavior that are normatively acceptable to most of the regulated and their regulators. Both the regulated and their regulators find a balance between a mode of behavior that is formally deviant (against the law) but normatively acceptable. Through this type of balance, PADs become informal law and define the “experience of order.” The author draws on several examples to illustrate this process, including an examination of speed limit behavior and enforcement, tax compliance, criminal sentencing, racial profiling, jury nullification, and the 2000 U.S. Supreme Court decision in Bush v. Gore. Figures, footnotes


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