CONTEMPORARY LAW AND SOCIETY THEORISTS
Many contemporary theorists have written about law and society. This section examines the work of two of the most notable theorists.
Donald Black received his doctorate in sociology in 1968 at the University of Michigan. He held dual appointments in the Department of Sociology and the Law School at Yale and Harvard universities. He joined University of Virginia in 1985 where he is presently university professor of social sciences.
In three influential volumes, The Behavior of Law; Sociological Justice; and The Social Structure of Right and Wrong, Black (1976, 1989, 1998) set forth a theory of law aims to explain variations in law from a cross-national perspective, as well as among individuals within societies. As noted in Chapter 1, he considers law as governmental social control, which makes use of legislation, litigation, and adjudication. He distinguishes between behavior that is controlled by these means and behavior that is subject to other forms of social control, such as etiquette, custom, and bureaucracy.
Black contends that law is a quantitative variable that can be measured by the frequency by which, in a given social setting, statutes are enacted, regulations are issued, complaints are made, offenses are prosecuted, damages are awarded, and punishment is meted out. Consequently, the quantity of law varies from society to society and from one historical period to another in a given society. Different organizations in a society may have more or less law both for themselves and in regard to other groups and organizations.
The direction of law (that is, the differential frequency and success of its application by persons in different social settings) also varies. So is the style of law that, as mentioned earlier in our discussion of Durkheim, may be accusatory (with penal or compensatory consequences) or remedial (with therapeutic or conciliatory consequences).
Next, Black develops a number of propositions that explain the quantity, direction, and style of law in regard to five measurable variables of social life: stratification, morphology, culture, organization, and social control. Stratification (inequality of wealth) can be measured in such ways as differences in wealth and rates of social mobility. Morphology refers to those aspects of social life that can be measured by social differentiation or the degree of interdependence (for example, the extent of division of labor). Culture can be measured by the volume, complexity, and diversity of ideas, and by the degree of conformity to the mainstream of culture. Organization can be measured by the degree to which the administration of collective action in political and economic spheres is centralized. Finally, the amount of nonlegal social control to which people are subjected is a measure of their respectability, and differences between people indicate normative distance from each other.
On the basis of sociological, historical, and ethnographic data, Black arrives at a number of conclusions. He points out that the quantity of law varies directly with stratification rank, integration, culture, organization, and respectability, and inversely with other forms of social control. Thus, stratified societies have more law than simple ones, wealthy people have more law among themselves than poor people, and the amount of law increases with the growth of governmental centralization.
The relationships between the quantity of law and the variables of differentiation, relational distance, and cultural distance are curvilinear. Law is minimal at either extreme of these variables and accumulates in their middle ranges. For example, law relating to contractual economic transaction is limited in simple societies where everyone engages in the same productive activity and in the business world where manufacturers operate in a symbiotic exchange network.
The style of law varies with its direction: In relation to stratification, law has a penal style in its downward direction, a compensatory or a therapeutic style in its upward direction, and a conciliatory style among people of equal rank. In regard to morphology, law tends to be accusatory among strangers and therapeutic or conciliatory among intimates. Less organized people are more vulnerable to penal law, and more organized people can count on compensatory law.
These patterns of stylistic variation explain, for example, why an offense is more likely to be punished if the rank of the victim is higher than that of the offender, but is more likely to be dealt with by compensation if their ranks are reversed, why accusatory law replaces remedial law in societies undergoing modernization, why members of subcultures are more vulnerable to law enforcement than conventional citizens, and why organizations usually escape punishment for illegal practices against individuals.
Over the years, Black’s theory of law has generated considerable critical debate and analysis (Wong, 1998), with some of its propositions not supported very well by empirical testing at the macrosociological level (Lessan and Sheley, 1992). Nonetheless, Black’s theory of law has still been influential, and his propositions are likely to be subjected to further testing, criticism, revision, and reformulation. But, as Lawrence W. Sherman (1978:15) presciently noted shortly after the publication of The Behavior of Law, “whatever the substance or method, social research on law cannot ignore Black.”