Law and the Parameters of Acceptable Deviance

Abstract:     
It can be useful to think of law as a standard, around which we construct parameters of acceptable deviance (PADs). Behavior that occurs within PADs usually is not sanctioned, despite its illegality; behavior that occurs outside PADs is often sanctioned, regardless of its legality. This article examines the construction of PADs arguing that they are the product of continuous interplay between formal law and the normative sensibilities of the regulated and their regulators. The article then attempts to explain why institutions of regulation and enforcement cannot formally acknowledge PADs without altering them. Finally, it demonstrates the explanatory power of PADs applied to a range of otherwise puzzling or bedeviling legal phenomena, such as racial profiling, jury nullification, and even the Supreme Court's controversial decision in Bush v. Gore.

Keywords: deviance, society, enforcement, negotiation, profiling, nullification, norms, behavior

Accepted Paper Series