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Article Excerpt
I. INTRODUCTION
What's the speed limit? (1)
The explanatory power of one answer to that apparently innocuous question provides a useful and rich conceptualization of law that can shine light on the dynamic relationship between the regulated and their regulators, and guide lawmakers in their policy decision-making. Moreover, it can link together the most mundane and ubiquitous legal phenomena, such as the decision of a police officer to stop a driver for a traffic violation, with the most spectacular and rare, such as the decision of the Supreme Court to intervene in the presidential election in 2000.
II. THE EFFECT OF SOCIAL NORMS ON ENFORCEMENT DISCRETION
There is a well-recognized gap between law-on-the-books, or formal law, and law-as-enforced. This is apparent nowhere so much as in criminal law; as Kenneth Culp Davis recognized long ago, there are "two sides" within criminal law--"the formality and the reality." (2) The formality, in Davis's classic formulation, exists "in statute books and in opinions of appellate courts." (3) Reality, by contrast, "is found in the practices of enforcement officers." (4) These practices vary widely: "[S]ome law is always or almost always enforced, some is never or almost never enforced, and some is sometimes enforced and sometimes not." (5) There is a parallel gap between law-on-the-books and law-as-behaved. As Tom Tyler explained, despite continuous efforts by regulators over long periods of time, the regulated simply do not conform their behavior to formal law in many areas. (6) Some law is always or almost always behaved, some is almost never behaved, and some is sometimes behaved and sometimes not.
If the formal law is neither behaved nor enforced, how do regulators and the regulated find behavioral and enforcement standards that leave most people free from coercive enforcement most of the time, regardless of the legality of their behavior, yet subject the most extreme behaviors to coercive enforcement most of the time?
Scholars have taken serious interest in the social forces that guide the regulated's compliance decisions. (7) Much scholarship has focused on the powerful effect of social norms on those decisions across legal boundaries. (8) Many years ago, Stewart Macaulay showed that norms of social behavior are often more powerful than the law; (9) that is, behavioral decisions, even those made within a law-based relationship, are often made with reference to norms first, law second. (10) Macaulay's insights focused on civil law, but they apply to criminal as well; as Paul Robinson explains, "criminal law's power to influence conduct may reside in large part in its normative rather than its coercive crime control mechanisms." (11)
Less attention has been paid to the effect of norms on discretionary enforcement decisions. Although commentators have debated how much discretion institutions of enforcement and actors within them should have, (12) and whether particular exercises of discretion are wise or just, (13) few have examined the social forces that guide discretionary enforcement decisions.
To the extent regulators' enforcement decisions do not adhere to enforcement of the formal law--that is, to the extent they are formally "deviant"--we may ask, as we do for the regulated, what is guiding their decision-making. Both enforcement and compliance decisions are exercises of discretionary behavior. If enforcement and compliance are both kinds of discretionary behavior, then both are subject to the social forces that influence behavior. It is not surprising, therefore, that close examination reveals that just as the regulated are guided by norms in their compliance discretion, regulators are guided by norms in their enforcement discretion.
An example from the frozen sidewalks of Madison, Wisconsin, (14) helps to illustrate the point. (15) In the winter months, Madison deploys sidewalk snow inspectors--men and women whose job it is to enforce the city's sidewalk-clearing ordinance following a snowstorm. The ordinance is specific: property owners must clear, free of snow and ice, at least a three-foot wide path no later than noon of the day following each snowfall. (16) But its enforcement is guided not just by its terms, but also by the inspectors' normative sensibilities.
For example, in February 2006, an inspector measured a cleared path in front of an apartment complex. (17) It was two feet wide at its widest point, and narrower elsewhere: a clear violation. Still, he wrestled with whether to enforce the ordinance, describing it as "a tough call." (18) Ultimately, keeping in mind that most wheelchairs are wider than two feet, he decided to issue a citation, explaining, "If it's a big business, I'm OK with it. It's not the greatest feeling when you're beating up Grandma." (19)
In contrast to the "tough calls," some decisions to enforce are "nobrainers." (20) For example, he did not hesitate to cite a business that had made no attempt to clear any of the eight-inch deep snow from its sidewalk; he had cited this business twice previously during the same winter. (21)
In short, the inspector had created a taxonomy of enforcement that did not exist in the ordinance. "Grandma's" violations were not subject to enforcement; it was a "tough call" when a non-Grandma had made some effort toward compliance; enforcement against a non-Grandma who made no effort toward compliance was a "no-brainer." The blueprint for this taxonomy was not the ordinance; it was the inspector's normative sensibility, one likely shared by and derived from others in his community, regulators and regulated alike. Consequently, at least on his beat, that normative sensibility became the effective ordinance.
More than forty years ago, Herman Goldstein, then Executive Assistant to the Chicago Police Superintendent, discussed a remarkably similar issue. (22) A Chicago ordinance prohibited four-wheeled vehicles from being driven on sidewalks. (23) Chicago police arrested a man who was clearing snow from his neighborhood sidewalks by driving a snowplow on them, in clear violation of the ordinance. (24) The department found, to its horror, that the community was "enraged" by the arrest. (25) To the community, there were degrees of acceptability for driving on sidewalks, even though forms of driving on the sidewalk were formally deviant. Driving on the sidewalk for one's own convenience was unacceptably deviant; driving on the sidewalk to help neighbors clear snow was acceptably deviant.
The fact that the police had enforced the law made no difference to the public, because the police were not expected to enforce the law; they were expected to enforce the limit of normatively acceptable deviance. In response, the police adapted their enforcement practices to the regulated's normative sensibility: "Members of the department no longer arrest the drivers of four-wheel sidewalk plows; the ordinance, however, remains on the books. We have just decided not to enforce it." (26)
Goldstein reported similar uproar over no-fault enforcement practices. (27) For example, formal law required police to cite motorists driving with a non-working headlight, regardless of fault. (28) The local press joined public condemnation of the practice, summarizing the popular argument as "the motorist who purposely breaks the law deserves to be punished" but that otherwise enforcing the law was not "sensible." (29) The police responded by tailoring their enforcement practices to match popular sentiment: officers were instructed to issue citations if they believed the motorist had ample time to fix the headlight but had refused. (30) In other words, the community's normative sensibility added the element of mens rea to the formal law, and the police decided to enforce the law-as-rewritten-by-normative-sensibility, rather than the law-as-written. (31)
Similarly, in his study of the enforcement of strict liability criminal laws governing wildlife conservation, Frank Remington discovered that the wardens charged with enforcing strict liability statutes had effectively read the element of mens rea back into them. (32) He found that game wardens would not usually arrest a hunter in a no-hunting area, unless the hunter tried to hide from the warden--by hiding, the hunter revealed a guilty mind, indicating that he knew he was in a no-hunting area and had intentionally entered it anyway. (33) By basing enforcement decisions on the presence of a guilty mind in defiance of the statute's strict liability scheme, the wardens had aligned their enforcement practices with what they perceived through their "day-by-day, warden-meets-offender" experience as the community's normative sensibility: that liability without fault was simply unfair. (34) Insisting upon it, the wardens believed, would endanger "public cooperation" with the broader goals of wildlife conservation. (35)
Grattet and Jenness have insightfully observed that police departments "are places where law is given meaning." (36) Statutes "cast[] a shadow" over policing but do not determine what police do. (37) But as Goldstein and Remington noted, regulators such as police are not alone in giving the law meaning. The real meaning of law is also generated within the "realms that it seeks to regulate." (38) "Meaning-making ... is distributed across traditionally understood boundaries between 'inside' and 'outside' of the legal system." (39)
In each of these instances, formal law is neither behaved nor enforced. But the result is not chaos. Those charged with enforcing the law frequently exercise their discretion in a manner that enforces norms instead, just as those charged with complying with it frequently exercise their discretion in a manner that complies with norms instead. As Edward Rubin has explained:
Weakening the formal controls may increase random variations in behavior, but its only consistent effect will be to increase the effects of informal norms. Very often, it is the strength or acceptability of the informal norms that makes weakened control acceptable.... In any event, the behavior, even when the controls are weakened, is likely to reveal a pattern. (40)
III. THE CONSTRUCTION OF PARAMETERS OF ACCEPTABLE DEVIANCE
The pattern revealed by law-as-behaved is informed by, but not identical to, informal norms alone. Law and norms are not autonomous; they co-exist in an endogenous system, influencing each other in a continuous, evolving cycle of cause and effect. (41) Norms express the collective moral sensibility that gives rise to law (42) and also serve as a heuristic for law. (43) Law has an anchoring effect on normatively acceptable behavior; (44) it symbolizes moral and normative commitments; (45) it expresses values that become assumed; (46) and it evokes the norm of law-obeying for its own sake. (47) Norms help create and sustain law, and law helps create and sustain norms. Most importantly, their interplay creates a third space that is occupied, over time, by a range of normatively acceptable behaviors that is neither synonymous with formal law nor independent of it.
Foucault hinted at the existence of this dynamic. "Order," he wrote, "is at one and the same time, that which is given in things as their inner law," and also "that which has no existence except in the grid created by a glance, an examination, a language." (48) The first of these orders corresponds with norms, at least as we usually perceive them. Norms sometimes seem natural, factual, a given; they arrive without debate and are internalized without conscious decision. The second of these orders corresponds with law, composed of our own reflections upon what seems a natural order. Law does not seem to arise from within us; it is produced by autocratic fiat or legislative negotiation and arrives as an externality, with its deep origins as a reflection upon what seems a natural order obscured. Unlike norms, which do not require formal reduction to language in the form of codification, law has no existence except through language. Law cannot exist outside language unless it coincides with norms, and a law that coincides with norms and is not reduced to language has no existence distinct from the norm with which it coincides.
Norms and law, then, are "primary codes" that guide us. (49) But, Foucault explained, in operating together, these two forces create a third order, neither norm-autonomous-from-law nor law itself. (50) This is the space within which much behavior occurs: (51)
But between these two regions, so distant from one another, lies a domain which, even though its role is mainly an intermediary one, is nonetheless fundamental: it is more confused, more obscure, and probably less easy to analyse. It is here that a culture, imperceptibly deviating from the empirical orders prescribed for it by its primary codes, instituting an initial separation from them ... frees itself sufficiently to discover that these orders are perhaps not the only possible ones or the best ones.... Thus, in every culture, between the use of what one might call the ordering codes and reflections upon order itself, there is the pure experience of order and its modes of being. (52)
Thus, there is a range of behaviors that are neither compliant with, nor independent of, law. It is deviance informed by norms and anchored by law that occurs within parameters of acceptability.
These parameters of acceptable deviance (PADs) are the limit of behavior that is normatively acceptable to most of the regulated and their regulators, and the informal standard that triggers enforcement by regulators and social sanctions by the regulated. They encompass law-as-behaved and define law-as-enforced. The regulated and their regulators, both guided by norms and anchored by law, find a mode of behavior that is formally deviant but normatively acceptable and that does not trigger enforcement. When discretionary enforcement is exercised based upon a normative sensibility shared by the regulated and regulators, and anchored by law, PADs become the informal, but very real, law. They define the "experience of order." (53)
The 2x2 box in Figure 1 depicts the effect of the relationship between legality and normative acceptability on enforcement.
Behavior that is both formally legal and within PADs falls within the upper left box. Enforcement against behaviors that are both legal and within PADs is in error. Enforcement may be the product of misinterpretation of either the formal law or the behavior. (54)
In the lower left box are behaviors that are legal but outside PADs. These are the opposite of acceptably deviant behaviors--they are unacceptably compliant. For example, driving the speed limit in the middle lane of an interstate highway is formally legal, but normatively unacceptable; so is covering a front lawn with plastic pink flamingos in some neighborhoods. (55) Enforcement by formal institutions against such behaviors is conceivable, but so awkward as to be unlikely. (56) In the absence of formal enforcement, communities often impose their own informal social sanctions--the unacceptably complaint driver might find himself subject to sanctions such as tailgating, horn-blowing, headlight-flashing, and obscene gestures, while the flamingo-lover could find her lawn vandalized or herself ostracized.
In the lower right box are behaviors that are both illegal and outside PADs, such as most forms of sexual contact between adults and young children. Enforcement against these behaviors is expected. Nonenforcement, in these cases, suggests that factors other than the illegality and normative unacceptably of the behavior may be driving enforcement decisions. These might include political influence, bribery, or simply inadequate enforcement resources.
The upper right square encompasses behaviors that are formally illegal but within PADs, such as Goldstein's example of driving with a faulty headlight. (57) Enforcement against behavior that is formally illegal but within PADs is unusual and, therefore, suspect. Because enforcement is not usually triggered by these behaviors, enforcement may be motivated by factors other than the defendant's behavior. As I will discuss in Section V, when enforcement is triggered by behavior that falls within PADs, courts should recognize a duty to apply heightened scrutiny to the motivation behind enforcement.
Figure 2 offers another way to visualize the dynamic relationship between law and PADs. Formal law is the standard around which PADs flow. As seen in Figure 2, enforcement is unexpected against behaviors that are formally deviant but within the parameters of acceptability. Indeed, the behavioral mean might exist somewhere between the formal law and the limit of normatively acceptable deviance. On the other hand, it is expected that formal enforcement will occur against behaviors that are both formatively deviant and outside the parameters of acceptability. Informal social sanctions might be expected against behaviors that are formally compliant but normatively unacceptable (such as the "pink flamingo" behavior).
[FIGURE 2 OMITTED]
A. NEGOTIATION-THROUGH-PRACTICE
Implicit agreement on the location of PADs seems to be generated through day-to-day interactions between the regulated and their regulators. Like parties bargaining over the terms of divorce "in the shadow of the law," (58) the regulated and their regulators negotiate the terms of acceptable deviance in the shadows of law and norms. Negotiation over the location of PADs seems to be a macro-level social process derived from innumerable micro-level enforcement experiences. Eventually an "implicit social contract" locating PADs is derived from "shared expectations that evolve from repeated interactions over time between regulatory authorities and regulatees." (59) The social process that produces an implicit social contract locating PADs might usefully be called negotiation-through-practice.
i. Speed limits
Speed limits provide a useful opportunity to observe negotiation-through-practice in action for several reasons. First, it is difficult to think of another instance in which the content of a law is presented to the public on large signs again and again. The ubiquity of speed limit signs dulls our awareness of how unique, in fact, they are. (60) Nowhere else does the government go to such extraordinary effort to inform its citizens about the content of law. Speed limits are probably the formal law about whose content the regulated receive the most extensive notice. If law and norms both influence behavior, it might be expected that the relative influence of norms would be stronger...
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