DIGGING INTO LAW & SOCIETY:
BONES OF CONTENTION
Lonn Lanza-Kaduce
THE FIELD OF STUDY
The titles of various texts describe, as well as anything else, what the general thrust of the field
is. Kidder (1983) writes about Connecting Law with Society; Chambliss and Seidman dub the
field as a study of Law, Order, and Power (1971; 1982); Vago (1994) and Inverarity et al. (1983)
merely refer to it as Law and Society. Campbell and Wiles (1980: 17) provide a useful
thumbnail sketch of the field.
The focus is ... on understanding the nature of social order through a study of law. Insofar as
law is scrutinized it is from a perspective that attempts to be exogenous to the existing legal
system. The goal is not primarily to improve the legal system, but rather to construct a
theoretical understanding of that legal system in terms of the wider social structure. The law,
legal prescriptions and legal definitions are not assumed or accepted, but their emergence,
articulation and purpose are themselves treated as problematic.... Reform of the legal system
is not, as such, the goal even though an adequate theory of law may entail a consideration of
the relationship of law to social change.
Several themes are submerged within this description that warrant explication. First, the legal
phenomena we will study include legal prescriptions and definitions (laws) and legal system
components (e.g., courts, police, the bar) as well as the outcomes they produce (e.g., divorce
settlements, liability, guilt, money damages, prison sentences).
Second, we expect to be able to discover how these legal phenomena are linked to our social
structures (i.e., how our groups are organized).1 Thus we need to have an understanding of what
constitutes both law and society. Legal phenomena become some of the data that we study to
establish how law and society are related. However, we must also look outside of law to help
understand it and its relationship to society. As Akers and Hawkins (1975) point out, law can
serve as either a dependent variable (that which is explained) or an independent variable (that
which explains something else). Often, the relationship between law and society is actually
interdependent and reciprocal; societal forces affect law in ways that act back on society. For
example, America’s war on drugs in the late 20th Century included legal changes that increased
prison populations and diverted monies from other public services like education.
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"Social structure is interaction among people that recurs in regular and stable patterns over
time. Social structure--the form or shape of social relationships--is distinct from the actual
people who interact with one another. Thus, the social structure of your high school endures,
even though students graduate, teachers leave their jobs, and administrators change." Conklin
1984: 147.
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Third, we examine a particular law or legal procedure not because we wish to defend or change
it, but because we think it will help us learn about more general relationships between law and
society. We search for strategic legal phenomena that provide insight into the nature of the
connections between legal phenomena and social structure.
Fourth, the study of law and society emphasizes understanding and explanation and so rests on
theories. As we shall see, such a theoretical emphasis makes the inquiry more, rather than less,
relevant because an abstract theory can account for a wide variety of individual cases or
situations. Unfortunately, abstraction sometimes makes it harder to derive policy implications
and practical applications from our theories. But when we are successful, we have a blueprint
for change.
If our goal is to gain a better theoretical understanding of the relationship between law and
society, then we must carefully examine the theories we use. Whenever we solve problems, we
are theorists, although some of us are much better at it than others and some of us are better at
theorizing about auto mechanics or interior design than law and society. Our theories about law
and society are our conceptual models for putting pieces of information together in
understandable ways. They identify those features of law and social structure that are most
important to connect. As we shall see, much disagreement exists among scholars (in such
relevant disciplines as jurisprudence, philosophy, anthropology, economics, psychology, political
science, and sociology) about the defining characteristics of law and the pivotal features of
society. If alternative theoretical logics are premised on differing conceptualizations and
assumptions (many of which cannot be falsified), then the various theories will advance
competing arguments that reach different conclusions. The many theories may not all be “right,”
but they can add to our knowledge.
A FIELD GUIDE FOR THEORY CONSTRUCTION
We begin our inquiry with an overview of theory construction. Once the tools of theory
construction are reviewed, we will disassemble a particular sociology of law theory. We will try
to identify the assumptions on which its explanation for law and society rests and provide a
critique of its adequacy. The critique should illustrate the kinds of issues we confront when
theorizing about law and society and serve as an exemplar for analyzing other theories.
Numerous underlined terms of art appear in the following sections. Students are not expected to
comprehend the terms completely on the first read. They are underlined to sensitize everyone to
concepts that we will revisit throughout the course as we review different explanations about law
and society.
A. Concepts—the Fragments of Theory
Concepts are the basic building blocks of theory and science (Turner, 1974; Mayer and
Greenwood, 1980). They are ideas or mental images about reality that consist of 1) the idea
itself, 2) a term that we can use to refer to that idea, and 3) some kind of observable referent
which is linked to the idea. For example, a tort may be the term that we use to refer to our idea
about civil responsibility for harming others. We have a referent of the concept when someone
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observes a driver running a stop light and crashing into another’s automobile. For scientific
research, some referents become critical—they are what we can observe and measure.
Concepts may vary in their level of abstraction. Our example of the general concept of tort
subsumes more specific kinds of civil wrongs: some torts are intentional (e.g., the driver above
tried to hit the other car) while others are negligent (the driver didn’t see the stop sign). What we
learn about more abstract concepts (e.g., torts generally) will have application to more referents
(e.g., cases of both intentional and negligent driving as well as cases of pushing, unnecessary
surgery, etc.). Some properties will apply only to the more specific concepts (e.g., the
requirement of intent applies to intentional torts but not to negligent torts). In other words,
abstraction relates to the scope of a theory—or how much it seeks to explain.
We can also distinguish between concepts. Nominal concepts merely label a phenomenon (e.g.,
something is a negligent tort). They vary only in terms of whether the phenomenon is present or
absent. Variable concepts indicate different levels or degrees of a phenomenon (e.g., how much
damage was caused). Sometimes they differ along an ordinal scale (e.g., the damage ranges
from low to high or from less to more serious). Sometimes the degrees of difference can fall
along equal intervals (e.g., $500, $501, $502, .... of damage). Generally, interval variable
concepts are associated with greater precision.
In theory, we put concepts together to construct a logical framework that shows the reasons or
arguments for why we think the world is the way it is. The concepts are initially linked together
in statements known as propositions which, in turn, are logically arranged to explain events. The
explanations can help us predict what will happen (and why) and/or understand what has
happened.
B. Propositions—Putting the Pieces Together
The logic of theories rests first on linking concepts together into propositional statements (e.g., a
“tort” is a private or “civil wrong” according to Black’s Law Dictionary). We will speak of five
different kinds of propositions.
Definitional Propositions
Some propositions are definitional; they use other concepts (ideas, terms, and referents) to help
define the one of interest. So a tort is defined in terms of being a civil wrong. But the concepts
used to define the original idea may also need to be defined by linking them to still other
concepts. To understand a civil wrong, we need to distinguish it from crime; to distinguish crime
we need to contrast punishment with restitution, etc. The definitional process will continue until
we have a shared meaning for the original idea, a common term, and can mutually identify the
referent or referents. At least one prominent early sociologist of law, Max Weber (1954), spent
much of his time advancing definitional propositions. His definitions of law, social class,
rationality, and authority (to name a few) have been seminal to modern inquiry. Definitional
propositions are either accepted or rejected; they cannot be true or false.
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Philosophical Propositions
Other propositions are philosophical; they too are either accepted or rejected and cannot be
ultimately proved. If we accept the common definition that philosophy is the study of the nature
of reality and how we come to know about reality, then we have identified two of the most
fundamental kinds of philosophical propositions. Ontological propositions deal with the nature
of reality. Epistemological propositions deal with how we know what we know about that
reality.
As we shall see, one of the basic schisms in sociology of law (and sociology more generally) is
that between materialist and idealist ontologies. Some theories are built on materialist
propositions. They tend to conceptualize a single external reality based on matter (or by
extension movement of matter such as behavior). As such, they emphasize the objective, that
which is observable. So the structure of the legal system (e.g., its courts, its law enforcement, its
administrative agencies), the behavior of legal actors (e.g., police, judges, criminals, lawyers,
clients), and the outcomes produced (e.g., verdicts, executions, settlements) in individual cases or
in patterns across cases lie at the heart of theories that make materialist ontological assumptions.
Other theories rest on idealist ontologies. Their underpinnings are the ideas and cultural beliefs
relevant to law,
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and their concern is with how law is interpreted, how meaning is negotiated, or how order is
constructed. They dwell on the subjective, on the thought processes underlying law and society.
Idealist propositions conceptualize multiple social realities that reflect mental processes
(different mind sets) as being most crucial to the relationship between law and society. Lawyers
in adversarial proceedings intentionally plead different cases that encourage different
interpretations of the event. They try to manipulate the mind sets of juries and judges. The
outcome of a case depends on how finders of fact interpret the conflicting evidence and fit it with
the legal theories of the case.
The materialist-idealist rift plays itself out in epistemological propositions as well. If reality is
assumed to be external to the researcher and anchored in observable things, then value-neutral
techniques can be used to learn about it. Whether we be Democrats or Republicans, Buddhists or
atheists, Vietnamese or Lapplanders, we can observe very similar things about law and society if
we use rigorous standardized scientific procedures. These rules of study are often referred to as
the scientific method and are linked to a paradigm in social science commonly called positivism.
We will review the methodology in more detail later. For present purposes, the significance of
using the positivistic scientific method to study objective, materialist phenomena lies in the
belief that everyone who is so inclined to study and observe similar phenomenon will report
similar findings. Two very different people, for example, could compare the rate of murder for
males with that for females in a jurisdiction and obtain the same results.
On the other hand, if reality primarily lies in our ideas, a shared reality has to be constructed—
we may have different senses of what has to be negotiated. Researchers can observe the process,
but they will be using their own interpretations of what is real to learn about it. Value-neutrality
is impossible; values are interwoven into knowledge about law and society. The non-positivistic
scientific procedures are less standardized and may produce alternative interpretations. African
American males, for example, may have interpreted the reality of the O.J. Simpson murder trial
differently from how Caucasian American females viewed it.
Depending on which ontological/epistemological combination is assumed in a theory, other
philosophical propositions will be incorporated. Idealist ontologies usually adopt an individuallevel analysis because individuals are doing the thinking. Even some behaviorist theories [which
are “materialist” in that they emphasize objective behaviors] allow for individual mental
processes to play a major role (Bandura, 1977; Akers, 1985).
No consensus exists, however, among these individual-based theories on what individuals are
like. Some theories will adopt Hobbes’ view of human nature and assume that individuals are in
a state of war, one against the other, as they pursue their own narrow self interests. The need for
control looms large in such formulations. Other individual-based theories will opt for something
more like Locke’s position on human nature: humans are good or at least perfectible in some
hypothetical free state of nature and social structures should be designed to allow them to reach
their potential in their own ways. How to secure social control will be very different if people
are presumed to be basically good or perfectible.
Theories anchored in thought processes also have to consider what thinking is all about. They
may assume rationality (much theory on law does) or irrationality as the basis for ideas. Even
among those who assume rationality, there is no uniformity about what it entails. Some
formulations (deterrence theory, for example) posit a cost-benefit analysis among self-interested
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individuals. Other approaches (like that of Weber 1954) refer to rationality in terms of more
general means-ends thinking and do not depend on cost-benefit calculus.
Closely related to the issue of rationality is that of free choice (also referred to as volunteerism).
Individuals who are calculating costs and benefits are usually thought of as having free choice;
the purpose of the calculus is to choose behavior. Similarly, the reason to engage in means-ends
thinking is to select means to achieve chosen goals.
Some theories are going to assume free choice. Many theories about crime (e.g., deterrence,
rational choice) posit free choice on the part of criminals. The theory of criminal law in the West
also assumes that criminals choose their behavior.
Other theories will reject the notion and adopt some form of determinism (i.e., the behaviors of
individuals or the outcomes of groups are determined). What determines the behavior can be
biology or genetics, psychology or psychological conditions, or social arrangements.2 The
theory behind the law of insanity in Anglo-American jurisprudence accepts the notion of
determinism rather than free will. Legally insane persons should not be punished for committing
the wrongful act because they did not enjoy free choice.
Theories that use mental processes to explain phenomena may also differ in another basic way.
Most theories will posit that thought primarily reflects our different experiences. Several
examples will illustrate the importance of different experiences. One example will focus on
legal socialization; another on the development of legal doctrine.
One way in which we can be socialized into norms about law is through their direct learning (see
Cohn and White 1990). Social learning models posit that our experiences will bring about
learning, either because we model that which we observe or because we receive rewards and
punishments for our behaviors and verbalizations. Different experiences, for example, with law
enforcement will teach us different things. Many poor African Americans may learn distrust and
suspicion while white suburbanites may learn respect and cooperation.
Different experiences can also lead to variations in legal doctrine, especially in common law
areas where legal development springs from the kinds of cases that are brought to court. For
example, different experiences with water (and its availability) in the Western United States
caused legal thinking about water rights to be very different from those transported from soggy
old England and applied in the Eastern United States (see Browder, Cunningham and Julin
1973). The East used the English common law doctrine of “riparian water rights” to streams and
rivers (i.e., every land owner adjoining the river or stream had an equal right to the flow of the
water without its unreasonable diminution or alteration by someone upstream). Therefore,
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Many social science theories adopt some form of soft determinism (Matza, 1964). Soft
determinism accepts the notion of free-will, but assumes that our choices are constrained by
factors beyond our control. There can be variability in how severe the constraint is and what the
source of the constraint is. We may, for example, think of sexual orientation as being freely
chosen, but psycho-social and/or biological processes may severely constrain that choice. We
may entertain the possibility that we choose our religion, but many of us seem to have been
socialized into the beliefs and practices of our parents.
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upstream users could not divert large quantities of water and deprive downstream owners of their
water rights. The rule was and is feasible where water is plentiful. In the West, however, where
water is scarce and dry seasons are long, the doctrine of “prior appropriation” prevailed. Those
who entered their claims to the water first could use and consume the water regardless of
whether they were down or upstream.
The example of water rights also illustrates how law can affect outcomes. The choice of prior
appropriation doctrine helps explain why the flow of the Colorado River, one of the great natural
forces that carved the Grand Canyon out of rock, diminishes into sand downstream in Mexico.
A few theories will offer a different explanation of how experiences relate to thinking. They will
assume that we have inherent structures for speech or thinking (e.g., moral or legal
developmental stages) that shape or affect ideas. For example, legal development models (Tapp
and Kohlberg 1971; Tapp and Levine 1974; Cohn and White 1990) focus on the cognitive
development of people over the life span. “The ways in which people experience, categorize,
and relate to objects in the environment change as they move from infancy through childhood
and adolescence to adulthood. Different cognitive capacities are thereby related to age. Older
children and adults whose cognitive capacities are further advanced are in positions to
understand and think about politics, morality, and law in a manner quite different from younger
children. The cognitive shift is from reasoning controlled by the physical consequences of an
action to that influenced by groups and authority to reasoning that is rational and autonomous”
Lanza-Kaduce and Klug 1986: 245).
While some theories premised on materialist assumptions also focus on individual actors (and so
can vary widely on philosophical issues of rationality, inherent structures, and the role of
experience in behavior), not all materialist approaches settle on individuals. Some move to
group-level analysis to study how patterns across aggregates of individual cases relate to other
group trends. For example, the rate of crime can be computed by aggregating or summing across
individual criminal events. That rate can be related to rates of imprisonment. A theory may
expect a collective incapacitation effect if we lock up large numbers of individual criminals.
Some of us use collective incapacitation to try to explain rates of crime, and we do so without
examining the individuals (or their mental states) who commit the crimes.
Some theories, usually those rooted in materialism, assume social emergence. Social emergence
rejects the assumption that all group phenomena can be reduced to the actions of individuals (or
even further to the psychological or biological functioning of individuals). Emergence proposes
that group-related phenomena (e.g., the rate of suicide) are best explained by group processes
(e.g., the structure of groups like families, the professions, etc.). The assumption is that the
whole is greater than the sum of the parts. The analogy would be to the sports team that has
good players (but not superstars) who play well together and thus it usually beats a team that has
more star individuals but that performs less well as a group. The win percentage is explained by
the group processes, not the skills of the individuals. Some teams of legal negotiators may be
similarly successful because of their teamwork. The U.S. Constitution is often thought to be an
example of a product of group processes that surpassed the personal talents of the individuals
involved.
Every theory will make a series of defining and philosophical propositions. Theorists, however,
may not always be explicit about which positions they adopt. One of our tasks will be to try to
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lay bare their foundations so we can conduct a more thorough criticism of the explanations. We
may think someone’s definition of something is too narrow (fails to include some phenomena or
a critical dimension) or too expansive (fails to make distinctions that it should), or we may make
a different philosophical judgment, perhaps about idealism or realism or about whether humans
are essentially mean, brutish and nasty or good. But we can’t prove the superiority of our
judgments on such matters.
Presuppositions
The third kind of proposition, the presupposition, begins to use a qualitatively different kind of
construct. Whereas neither definitional nor philosophical propositions can be proved or
disproved, presuppositions hold out the possibility of verification or falsification.
Presuppositions link concepts that could be directly observed. Their accuracy could, at least
hypothetically, be explored. For the immediate theory construction, however, they are
presumed—taken as given.
We could, for example, presume that people will readily do things for money. But we would not
necessarily have to show the empirical validity of the presumption to use it to help construct a
theoretical argument. In fact, not everyone will do things for money; and in some circumstances
people will do more if they are paid less. But an explanation about how economic incentives
affect the practice of law (see Blumberg, 1979) may not be well-served if its proponents get sidetracked by painstakingly refining the theory to include statements about when something other
than money motivates better than money does.
Because of the awesome complexity of the world, people in science frequently want to simplify
the world so we can understand basic relationships. Few theories even attempt to be
comprehensive, and science places a value on parsimony. Hence, most theories rely on some
presuppositions.
One common use of presuppositions is to emphasize some kinds of variables and de-emphasize
others. Some variables can be dismissed because they are less likely to be important to our
explanation. For example, if we assume a cost-benefit thinking process for individuals, then we
can presume that moral values will be less likely to help explain the choices of would-be
criminals. Even though moral decision-making processes may, in fact, relate to criminal choices,
we may not want to incorporate them into a more specific theory of costs and benefits. Such
theory construction would balance the advantage of a singular focus against the disadvantage of
less abstraction and scope.
Empirical Generalizations
The fourth type of proposition used to construct theories is the empirical generalization.
Empirical generalizations are statements about relationships between two or more concepts that
have been established by prior research (hence the term empirical). The established relationship
is a generalization that has been drawn from the findings of numerous studies. Ideally, for
something to rise to the level of an empirical generalization, the relationship should have been
established by different research efforts conducted by different researchers using different
samples and, perhaps, using different methodologies. And there should be little contrary
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evidence. For example, Hagan (1980) reviewed numerous instances of criminal law formation in
North America and found that, despite the research being conducted on different laws at different
times in different places by different researchers, virtually every study reported that the media
were critical to criminal law enactments (see also Hollinger and Lanza-Kaduce, 1988; Castellano
and McGarrell, 1991).
Note that we use inductive processes to establish empirical generalizations. The specific
research findings across studies are used to draw a general conclusion. Because the individual
studies may have looked at different specific referents (e.g., kidnapping, alcohol prohibition,
computer crime), the generalization will probably have some level of abstraction (e.g., be about
criminal law generally).
The practice of social science is something less than ideal. We sometimes do not have the luxury
of relying on well-established empirical generalizations in advancing our explanations. Instead,
we use prior research findings. Those findings may only be partial; they may be isolated; they
may even be contradicted by other studies. Theorizing based on these kinds of weaker empirical
relationships needs to be more tentative. We may advance explanations and deduce research
questions that produce unexpected results because we relied on incomplete findings or findings
that may eventually be proven to be atypical. Prior research findings, nevertheless, serve as
crucial building blocks even if they are not so well-established as are empirical generalizations.
Hypotheses
The final type of proposition is the hypothesis. If we have placed our definitions, philosophical
assumptions, presuppositions, and research findings together into a logical framework that seeks
to make sense of some part of reality, we should be able to deduce statements about what we
expect to happen or what we think we will find before we look for it. These are hypotheses.
They serve as the catalyst for most social science research and are the basis for advancing
knowledge. One advantage of stating the hypothesis a priori (i.e., before the research is
conducted) concerns credibility. If the research is already done, it becomes easier to adjust one’s
hypothesis in light of known findings. If researchers are forced to state their hypotheses up front,
they have less wiggle room.
Consider, for example, deterrence theory. The theory assumes free choice and rationality based
on a pleasure-pain calculus from which we presume that crime is chosen when its benefits
outweigh its costs. We presume that prison is a cost that potential criminals will choose to avoid.
We establish empirically that more criminals are going to prison and are staying longer. From
these premises, we can deduce a hypothesis that increased imprisonment (cost) will result in less
crime. The researcher then designs a study to examine the hypothesis and knowledge is
produced regardless of what is found. If the hypothesis is falsified, the finding is a piece of
evidence that may be eventually used to reject the theory and/or to establish an empirical
generalization (that imprisonment does not reduce crime). If the hypothesis is supported by the
research, the finding lends credence to the explanation and may help establish an empirical
generalization about the relationship of imprisonment to crime.
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C. Theory—A Constructed Model
Liska (1981:13) argues that “a theoretical perspective is a conceptual scheme which functions as
follows:
1. It defines some part of the social world as problematic, that is, deserving of study, and
specifies certainquestions for study (subject matter).
2. It provides answers to these questions (theory).
3. It includes empirical tests of the theory (research).
4. Based on theory and research, it suggests directions for social policy.”
Turner (1974: 2) echoes some of these themes. “Theorizing can be viewed as the means by
which the intellectual activity known as ‘science’ realizes its three principal goals: (1) to classify
and organize events in the world so that they can be placed into perspective; (2) to explain the
causes of past events and predict when, where, and how future events will occur; and (3) to offer
an intuitively pleasing sense of ‘understanding’ why and how events should occur.”
The need for theory construction is not limited to science generally or social science more
particularly. Law employs analogous techniques. The different missions of law and social
science result in some variations on the theme, however. Aubert (1973:50-53) has laid out
several reasons for somewhat different approaches (see also Vago, 1994:5).
1. Law emphasizes the particular (i.e., what happened in a specific case) rather than the general
(i.e., what happened across cases). See for example, McClesky v. Kemp (1987) where capital
punishment was justified in a particular case absent a showing of particular discrimination
despite strong evidence of a pattern of discrimination across cases. Some social sciences (e.g.,
sociology) embrace group-level analysis and tries to establish patterns like those presented by the
sentenced murderer in McClesky but rejected by the Supreme Court.
2. Law, unlike the physical and social sciences, does not endeavor to establish dramatic
connections between means and ends, especially future ends (e.g., what impact the verdict will
have on the defendant’s future conduct). It is more concerned with what has happened and is
happening. That which may be a legal outcome for a case remains legal even if it makes matters
worse in the future. For example, court ordered busing was/is a legal remedy for de jure public
school segregation even though it produced massive white flight from inner city school districts.
Social science is more often concerned with the overall impact of law than the immediate
outcome of a particular case.
3. Truth for the law is normative; a law is either valid and applicable or invalid and inapplicable.
Even where law uses probabilistic language as in various standards of proof for cases (e.g., proof
beyond a reasonable doubt, preponderance of the evidence), the probabilities are linked to clearcut decisions. Either something has happened or it has not (e.g., the person is or is not guilty of
the crime, the defendant did or did not breach the contract). Many social scientists (the
positivists) consciously strive to be value-neutral rather than normative; their findings are
probabilistic and their methods and decision-making explicitly rely on probability theory. So
scientists will state that a relationship between two variables (e.g., divorce and suicide) probably
exists.
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4. Legal consequences may be valid even if they do not occur; that is, their formal validity does
not inevitably depend on compliance (e.g., if an obligation created by a binding contract is not
fulfilled, it does not falsify the law or the contract). When expected outcomes do not occur in
science, hypotheses are falsified (or the results at least have to be explained away).
5. Ultimate legal decisions tend to be either-or, all-or-nothing (e.g., litigant either wins or loses a
case at trial). The best chance for a compromise solution comes before formal processes occur
(e.g., use of police discretion before arrest; negotiated settlements before trial). Social science
decisions are less cut and dried (e.g., people have free choice but it is constrained; the hypothesis
is partially supported).
One type of theorizing in law concerns the theory of the individual case. A lawyer has a theory
of each case so that the case can be presented to the court and be understood by the court in a
way that advances the best interests of the client. The prosecutor’s theory of the case leads to a
hypothesis for the jury that the accused is guilty (which the jury either accepts or rejects). The
plaintiff’s lawyer in a tort case may advance a theory that the plaintiff suffered certain damages
due to the negligence of the defendant from which s/he deduces that the defendant should be held
liable.
The theory of the case involves several kinds of propositions that frame the legal issues and
“explain” the facts. A lawyer advances legal definitions of relevant concepts which incorporate
important philosophical assumptions. (E.g., if the law of eminent domain is invoked to condemn
and confiscate private property for public use, then capitalist economic principles will be used to
determine its worth.) The lawyer also adopts some philosophical values within which to couch
the argument (e.g., the value of the conservation of resources; the democratic ideal; the need to
protect the little guy). S/he makes presuppositions about the kind of circumstances that
surrounded the case (e.g., what other ways could the property be used now and in the future and
how much opportunity cost is involved by losing the property through condemnation?). S/he
relies on the tangible and circumstantial evidence (the empirical, albeit idiosyncratic, record) to
weave the argument. The case can be “colored” (become more or less persuasive) depending on
the presentation of the evidence regarding the government’s action (e.g., was the condemnation
for critical government purposes like a needed road or for something like a library that could be
located elsewhere?) and the mind set of the officials (e.g., did the officials negotiate in good
faith?). The culmination of the argument is a proposed hypothesis about legal responsibility and
remedy or solution that the lawyer hopes the decision-maker (judge or jury) will accept (e.g.,
government owes the owner twice as much for that property as they offered because its future
potential is high on the open market, government’s need is low, and their efforts at negotiation
were heavy-handed and arrogant.
Although the black-letter rules of engagement in law presume that only legally relevant factors
will be used to construct the theory of the case, scholars both in law (e.g. the Legal Realists) and
social science (e.g., Chambliss and Seidman, 1971; 1982; Black, 1989) have recognized that
extra-legal inputs affect case outcomes. Social concepts are likely to be integrated into a
lawyer’s theory of the case because the mission of the practitioner is persuasion. Dress,
demeanor, presentation style, gender, race, age, etc. may influence how the case is received.
As a dramatic (and not representative) illustration of this point, think about the way in which
race was brought into the theory of the case in the O.J. Simpson murder trial in 1995. Recall that
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the former U.S. football star and media celebrity (who is black) had been accused of killing his
ex-wife and a friend of hers (both of whom were white) outside of her dwelling. Simpson’s
defense team has been accused (by some of its own members) of playing the so-called “race
card” in their successful efforts to win an acquittal. They refrained from using the derogatory
word “nigger” but actually embellished its importance by constantly referring to the “n-word.”
They were able to link the major police detective, Fuhrman, to the “n-word” and depict him as a
racist who opposed interracial couples. Simpson could then be portrayed as the victim of
overzealous and unprofessional police work, a view that was reinforced in other ways (e.g., the
bloody glove from the crime scene didn’t fit Simpson, some of the blood that Simpson had
voluntarily given to police was missing, Simpson’s impounded Bronco had been broken into
while in police custody). Enough doubt was created in the minds of the jury (whose members
were disproportionately black and female) to offset the blood evidence that linked Simpson to
the homicides.
In defense of the defense, their ethical obligation was to represent Simpson’s interests zealously.
They were open to criticism if they had not played the “race card” (although it could have been
played in a less blatant way). Moreover, theirs was not the only, and probably not the first, side
to incorporate race into a theory of the case.
The prosecution in the Simpson case named a striking young African American, Darden, to assist
the seasoned female prosecutor (who was probably given the case because of its domestic
violence theme). The prosecution’s case anticipated a race problem. Memories of the riots and
disorder that occurred when a white jury from a surrounding community acquitted white officers
of the video-taped beating of a black man (Rodney King) had already persuaded prosecutors of
the politics of keeping the Simpson trial in Los Angeles where many of the jury’s members
would be black or Hispanic. [American constitutional rulings make it difficult to challenge
potential jurors solely on the basis of race (Georgia v. McCollum 1992).] Darden’s position on
the prosecution was itself a race tactic to help it with its theory of the case: O.J. was less easily
seen as a victim of racism if he was being prosecuted by a black man.
Law employs the logic of theory construction in more abstract ways as well. There are theories
of general legal doctrines that help us make sense of the law and apply it. For example, the U.S.
Constitution’s fourth amendment provides that people are to be secure in their persons, places,
papers, and effects from unreasonable governmental searches and seizures. To make sense about
what is unreasonable we need a logical framework for the doctrine generally. Part of the
framework will consist of defining propositions (e.g., what constitutes government action for
purposes of search and seizure law). There will also be important philosophical assumptions
(e.g., Locke’s social contract notions about balancing the grant of power to government as a
means of securing order against the need to protect individuals from the abuse of government).
The legal theorists will make important presuppositions about things like the original intent of
the framers of the constitution or about the nature of the abuses of power that might occur. They
will use prior cases as tangible evidence about how government has encroached, and they will
use evidence of current practices to assess how much more or less protection is needed. They
may note how observable circumstances or practices have changed (e.g., the introduction of
electronic wiretaps). They then advance a theory about the fourth amendment. Our liberty
grows out of reasonable expectations of privacy—not property interests (See Katz v. U.S., 1967)
12
The Katz case dealt with wiretapped phone conversations where the tap was done on a public
phone, so there was no trespass on property. But there was an invasion of privacy because we
reasonably expect that no one else can listen to our conversations. From the theory we can
deduce hypotheses about the kinds of contexts in which we have reasonable expectations of
privacy that are constitutionally protected. Does, for example, a reasonable expectation of
privacy extend to cellular phone conversations when we know everyone has access to the
airwaves through which the transmissions are made? Hypotheses like these will be “tested” in
subsequent cases.
D. The Adequacy of a Theory—How Good is the Model
Various commentators have advanced a variety of ways to assess the adequacy of theory. We
will review the contentions of two of them to distill some common criteria that we can apply to
theories of law and society.
Akers (1994:6-12) advances four criteria for evaluating theory. They include: 1) the theory’s
logical consistency, scope, and parsimony, 2) the theory’s testability, 3) its empirical validity,
and 4) its usefulness and policy implications.
Logical consistency requires clearly defined concepts linked by propositions. The propositions
must be logically stated and consistent with each other. Scope refers to the range of phenomena
the theory covers. Theories are more useful when they help explain a broader range of data.
Parsimony is a desirable feature in that it requires the theory to be concisely stated and
sufficiently abstract so that fewer theories are needed to explain related phenomena.
Testability refers to whether the theory can be supported or refuted by empirical and replicable
research. The most important consideration in this regard is whether it generates hypotheses that
can be falsified by research. One reason why theories may not be testable is because of
tautological propositions. Tautology involves circular reasoning where one concept is defined
by another in a proposition. The assertion is, therefore, true by definition and cannot be tested.
Akers argues that empirical validity is the most important criterion. Its crux is whether the
theory has been supported by research.
Finally, Akers maintains that theories are more useful if they hold implications for policy.
Theory that can guide practice and solve problems is more helpful than that which cannot.
Another approach to the adequacy of theory is offered by Mayer and Greenwood (1980: 28).
“The correctness of a theory can be determined by reference to four criteria: (1)
exhaustiveness—Does it link up all of the empirical generalizations about a given phenomenon?
(2) internal consistency—Are the explanatory statements in the theory consistent with each
other, or does the theory generate conflicting hypotheses? (3) external consistency—Is the theory
consistent with related theory? (4) falsifiability—Is a set of empirical conditions (an hypothesis)
conceivable that is inconsistent with the theory.”
There are points of convergence between Akers and Mayer and Greenwood. Mayer and
Greenwood’s criterion of exhaustiveness corresponds with Akers arguments concerning scope
and empirical validity. Concerns with internal consistency and falsifiability are common to both
treatments. Akers makes issues of parsimony, tautology, and policy applications more explicit;
13
Mayer and Greenwood explicitly address the prospect of integrating across theories when they
discuss external consistency. All the criteria should be useful in our analyses of theories about
law and society.
Before proceeding to such a theoretical critique, I want to expand on the criteria a bit more. I
would suggest that abstraction is linked to exhaustiveness or scope in that more abstract theory
should be able to account for more empirical generalizations and research findings as well as a
broader array of observations. Moreover, abstraction is helpful in that it encourages parsimony.
We don’t need separate theories about all the minutia in the world if our concepts are abstract.
In that way abstraction makes the world more readily understandable.
I would also extend Mayer and Greenwood’s falsifiability criteria and suggest that it as important
as empirical validity. I think the more falsifiable hypotheses a theory can generate, the better.
Such a theory tends to provide more insight into our world and allows for establishing a wider
set of empirical generalizations.
The distinction between falsifiability and falsification is worth making explicit. “Good” theories
have the capacity to be falsified (falsifiability). They remain “good,” albeit not optimal, even if
some or all of their deduced hypotheses have been falsified (falsification). The utility in having
some hypotheses falsified lies in making subsequent adjustments in the theory (sometimes
referred to as theory specification). One way to accomplish this is through scope conditions or
statements. The theory may need to refine its scope, i.e., how it works differently for some
individuals or in some circumstances. Another way to adjust is to re-examine and refine a
theory’s presuppositions—something may have been presumed prematurely.
Even if most of the hypotheses are ultimately falsified (so the theory has little empirical validity),
a theory that has spawned research will have advanced our knowledge base. For a theory to be
useful, it needs only to generate research. So much the better if its hypotheses receive support.
In the long run, a fertile theory whose many hypotheses are falsified may be more useful than a
niggardly theory whose few hypotheses have received support.
TAKING A DIG AT BLACK’S BEHAVIOR OF LAW
In this section we apply the tools of theory construction to a modern theory of law. We will
conduct a critical analysis of Black’s (1976) theory of the behavior of law. See also Greenberg,
1983. We will try to accomplish three things: we will illustrate how theories are constructed, we
will gain some knowledge about one of the modern theories in sociology of law, and we will
provide a prototype for theoretical critiques that can be applied to the other theories we will
cover later.
A. The Bare Bones of Black’s Model
What follows is a summary of Donald Black’s provocative theory of the Behavior of Law. It is
presented in an abbreviated form. The outline is organized by the kinds of propositions Black
uses to construct his theory.
14
Summary of Black’s Behavior of Law
I. Philosophical Propositions
A.
B.
C.
D.
Everything behaves, living and nonliving.
This includes law.
It is not necessary to examine individuals to understand how law behaves.
Law is quantitative—there is more or less of it and it can be measured.
1. Assumes a single, external reality to observe—materialism.
2. Assumes a positivistic epistemology.
E. The behavior of law systematically varies with the behavior of other aspects of social
life.
1. Assumes correlations, but does not posit causal direction.
2. Assumes that those correlations are not unique to a particular time or place
(i.e., are not contextualized).
II. Defining Propositions
A. Law is governmental social control; it is the normative life of the state and its citizens.
1. Excluded are social control of everyday life of government service (e.g., post office or
fire departments)
2. Excluded are disciplinary efforts in government schools, prisons, and the military.
B. Anarchy is the lack of governmental social control (i.e., law) so much of social life, being
without law, is anarchic by definition.
C. Deviant behavior is conduct that is subject to social control; illegal behavior is that which
is subject to governmental social control and so Black claims his theory of law “predicts”
illegal behavior.
D. Generally, the quantity of law is known by the number and scope of prohibitions,
obligations, and other standards to which people are subject and by the rate of legislation,
litigation, and adjudication.
E. Some of the referents of the behavior of law are: legal complaints, arrests, indictments,
court hearings, verdicts or judgments, legal settlements, fines and prison sentences,
compensatory damages.
F. The behavior of other dimensions of social life can be defined.
1. Stratification is the vertical aspect of social life dealing with uneven distribution of
food, shelter, resources, money, etc.
2. Morphology is the horizontal aspect of social life and deals with the division of labor,
the integration of groups and people, and the degree of intimacy in interactions among
groups and people.
3. Culture is the symbolic aspect of social life and covers religion, folklore,
decoration/art.
15
4. Organization is the capacity for collective action that groups possess.
5. Social control is the normative aspect of society, particularly how we define and react
to deviance.
III. Presuppositions
A. Things other than law (like art, music, planets) behave (but they are not the subject of
Black’s investigation).
B. The important dimensions of social life are stratification, morphology, culture,
organization, and social control (and will be the subject of Black’s investigation).
IV. Empirical Generalizations and Research Findings
A. Black weaves prior research into his discussion of his various hypotheses.
B. Black’s treatment of prior research is not exhaustive.
V. Hypotheses
A. General hypothesis: Law varies with every aspect of its social environment—vertical,
horizontal, cultural, organizational, and normative.
B. Black develops specific hypotheses for each social dimension, illustrations of which
follow.
1. Law varies directly with stratification; thus, the more stratification a society
has, the more law it has.
2. The relationship between law and relational distance is curvilinear; law is
inactive among intimates, increases as the social distance between people
increases, but decreases again as people exist in more separate social worlds.
3. Law varies directly with conventional culture; conventional people have more law
than unconventional people so the middle class is more likely to sue someone else in the
middle class than a bohemian is to sue another bohemian.
4. Law varies directly with organization; as a group has more capacity to take collective
action, the quantity of law increases.
5. Law varies inversely with other social control; as more law is used, other social
control mechanisms like etiquette, family discipline, customs, and gossip will be used
less.
Black develops rationales for and advances numerous other hypotheses, but the above overview
will suffice to illustrate how he connects law and society. It also provides enough information to
permit us to conduct a critique of his theoretical framework.
16
B. A Critical Eye
Donald Black (1976:1) begins building his theory on the behavior of law with an expansive
assertion: “Everything behaves, living or not, whether molecules, organisms, planets, or
personalities.” He insists that “social life behaves” as does art, music, literature, medicine, and
science. His assertion is, really, a kind of presupposition, because Black has no intention of
showing us how art or music or medicine behaves. Rather he uses the broad premise to reorient
our thinking so that we will entertain the possibility that law, too, behaves.
We may not agree with Black’s attribution of “behavior” to nonliving things for several reasons.
First, the philosophical position “reifies” that which is not living. Law doesn’t act, judges,
lawyers, clients, and police act (see Jeffrey, 1979; Chamblis and Seidman, 1982). Second, it
seems to accept social emergence in that something about the collective—its social life and
institutions—behaves (i.e., relates to the world). The suggestion is that we can’t understand the
group processes by merely aggregating all the individual actions of individuals involved with
law. If the individual legal decision-makers were sufficient, Black would have directed our
attention to them.
Before we reject his “everything behaves” proposition, however, we need to examine his
definition. What does he mean by the behavior of law? We may be objecting more to the term
he uses than to the concept he discusses.
17
Black uses a series of defining propositions to convey the meaning of the behavior of law. He
first defines law:
[l]aw is governmental social control.... It is, in other words, the normative life of a state and
its citizens .... [I]t does not include social control in the everyday life of a government
service, such as a post office or fire department, since this is the social control of employees,
not of citizens as such. Nor does it include discipline in a government school, prison, or in
the military since this is not the social control of citizens—as such—either. By this
definition, then, many societies have been anarchic, that is, without law. ...In this sense, in
fact, much social life in every society is anarchic.” (Black, 1976:2).
As defining propositions, the assertions can have no ultimate validity; they cannot be falsified.
We may, and probably do, define law less narrowly than does Black. Most of us, for example,
would probably include the discipline of prisons as a referent of law. After all, the prison order
derives from legislation and administrative rules and procedures that we understand to be law,
and it is maintained by people specially designated in law to do so. Most of us may also reject
Black’s notion that anarchy is the absence of law as he narrowly defined it and so we would
disagree that social life is aptly characterized as anarchic.3 But our disagreements with Black
primarily indicate that we would conceptualize law differently. The good news is that we are
able to disagree because Black has begun to convey the meaning of his concept to us. He has
successfully conveyed that law, as he refers to it, has two important characteristics: social
control and involvement by citizens through their state or government.
Black identifies law with government. As we shall see shortly, some commentators reject this
position. Law may emerge prior to the governmental apparatus. Law may be used to check
government as through secondary rules. Indeed, if “no man is above the law,” than men and
women in government are also subject to law so law must have some separateness. One of the
issues that some sociologists of law address is the degree of separation between government and
law and the nature of the inter-relationships. They see government (like such other social
institutions as family, economy, education, religion) as being related or linked to law but
independent from it (see Turner, 1974).
Black’s concept of social control is subject to criticism. Black fails to define what he means by
social control. He only refers to it as the “normative aspect of social life.” (1976:2). Although
social control is a central concept in the study of law (see Akers and Hawkins, 1975 for a
review), Black should have been more explicit about its meaning (i.e., should have provided
additional defining propositions). Using Akers’s criteria of “good” theory, the logical
consistency of the concept is wanting.
3
Black's concept of anarchy may also lead to tautological propositions if students are not
careful. Since anarchy is defined as the absence of law (Black 1976:2, 123), its meaning is
completely dependent on Black's definition of law. Anyone who would use Black to hypothesize
that repealing law will increase anarchy would not state a testable proposition. The reasoning is
circular or tautological; the proposition is true by definition.
18
One way Black tries to simplify his rendition is by linking law with social control exclusively.
In this way, he does not have to consider other possible functions of law (e.g., dispute resolution,
social engineering, predictability in social relations). But his parsimony probably precludes a
complete understanding of how law really works.
Black recognizes that if law is defined by governmental social control, then its primary focus is
deviant behavior. “Deviant behavior is conduct that is subject to social control” (Black, 1976:9).
But then Black takes a logical leap. Black (1976:9) accepts a radical social reaction perspective
on deviance.
19
S]ocial control defines what is deviant. And the more social control to which it is
subject, the more deviant the conduct is. ... Accordingly, illegal behavior is an
aspect of law. Therefore, the theory of law predicts illegal behavior. It thus predicts
the same facts as the theory of crime, juvenile delinquency, or other illegal behavior.
Black proffers the social reaction of law to explain the illegal behavior itself.
There are two problems with his approach. One is tautology. If social control defines deviance, then
law (as governmental social control) defines illegal deviance. Thus, Black’s theory of law doesn’t
predict illegal behavior as he claims because illegal behavior is defined by law—leaving nothing to
predict.
The second problem is that Black does not entertain the possibility that those who pursue crime,
breach contracts, or commit torts engage in behaviors that give rise to legal reactions (see Akers,
1968). Their behaviors make such persons “subject to social control,” even if they are not actually
reacted to by anyone. A theory that explains why individuals engage in such behaviors is needed to
complement one that explains what the reaction of the law will be. It is logically inconsistent to
equate the two. Black’s claim of external consistency with theories of crime and delinquency rings
hollow because he makes no effort to explain how deviance or law-breaking is generated. He has
overstated how comprehensive his theory is.
Black distinguishes social control exercised by governmental employees from that exerted through
citizen involvement in their government. Black is silent, however, about the power arrangements
that create and sustain government and law. He does not address issues of legitimacy or power
directly and posits no difference between law that is commanded by a dictator and that which is
exercised through democratic involvement. Black is unspecific about what kind of citizen
involvement is entailed in law. Such ambiguity leaves questions about the internal logic of the
theory and invites others to fill the gap—perhaps in ways that Black would not have used and
perhaps in ways that are mutually inconsistent. Again, using Akers’s terminology, we are looking
for better logical consistency.
Black (1976:3) helps flesh out what he means by the behavior of law when he proposes that:
Law is a quantitative variable. It increases and decreases, and one setting has more
than another. It is possible to measure the quantity of law in many ways. A complaint
to a legal official, for example, is more law than no complaint, whether it is a call to
the police, a visit to a regulatory agency, or a lawsuit. Each is an increase in the quantity
of law....In criminal matters, an arrest is more law than no arrest....An indictment is more
law than none...and a serious charge is more than a minor charge....A trial or other hearing
is itself an increase of law.... A decision in behalf of the plaintiff is more law than a
decision in behalf of the defendant....The more compensation awarded, the more law.
And the same applies to the severity of punishment. ...More generally, the quantity
of law is known by the number and scope of prohibitions, obligations, and other
20
standards to which people are subject, and by the rate of legislation, litigation, and
adjudication.
21
Black uses the defining propositions in this passage to identify referents that we can observe to
measure the behavior of law.4 Black begins to show how his theory is testable. The referents are the
patterns of outcomes produced by legal process and actors. The language indicates that Black
conceives of law as a variable construct that can be measured ordinally (from more to less). Black
boldly asserts that numbers can be attached to those measurements. The philosophical implication is
that law is objective and external, and that we can use value-neutral methods to observe it. His
theory rests on a materialist ontology that we can learn about through positivistic science.
Black (1976:3-4) goes on to assert that:
The quantity of law varies in time and space. It varies across centuries, decades
and years, months and days, even the hours of a day. It varies across societies,
regions, communities, neighborhoods, families, and relationships of every kind.
4
Black (1976:4-6) also asserts that the style of law varies across four categories: penal,
compensatory, therapeutic, and conciliatory. These styles are also observable and become the basis
for some of his hypotheses.
22
In this passage Black proposes that there are patterns in the quantity of law across time and place.
Perhaps even more importantly he raises the prospect that the quantity of law will vary
systematically across different groups and relationships. Elsewhere Black (1976:1-2) makes a
presupposition about which social factors were likely to relate to legal behavior: stratification,
morphology, culture, organization, and social control. He also defines each of these dimensions (and
oversimplifies them). Stratification refers to the vertical aspect of social life dealing with uneven
distribution of food, shelter, resources, money, etc. Morphology is the horizontal dimension of
social life including the division of labor, the integration of groups and people, and the degree of
intimacy in interactions. Culture is the symbolic aspect and would cover such things as religion,
folklore, decoration/art. Organization is the capacity for collective action present in the group. And,
as we noted above, social control is the normative aspect of society, particularly how we define and
react to deviance.
Again Black’s simplification may have created problems. It blurs some features of social life. For
example, families and work groups both exhibit stratification, morphology, culture, organization,
and social control. Similar constellations among these dimensions in a family and a work group,
however, may not relate to law in the same ways. It remains to be seen whether Black isolated the
most critical social variables.
Another problem stems from Black’s strict presumption that all the variables that explain law lie
outside of law and in the larger society. In other words he ignores the theories and practices internal
to the system of law. Abstract theories of legal doctrines may generate similar theories for similar
legal cases. A rule-of-law model would expect the law to be applied more or less uniformly in ways
that explain both individual case outcomes and patterns of outcomes across cases. Social variables
would be less explanatory.
There is nothing inherently wrong with making a simplifying presumption that social variables are
more important than legal variables, but Black’s position is extreme. And it leads him to disregard
research literature that often finds that legally relevant variables explain legal outcomes better than
do social variables. Several examples may help. In criminal justice, the defendant’s prior record
and the seriousness of the charge predict sentencing in non-capital felony cases better than do race or
class or other background variables (see the reviews of Hagan, 1974; Blumstein et al., 1983; Kleck,
1981). Changes in police report-writing in domestic disturbances relates more to legally-relevant
variables present in cases (use of weapon, injury, seriousness of charge) than social ones (gender,
race, relatedness of disputants). See Lanza-Kaduce, Greenleaf, and Donahue, 1995. Black’s
presumption of social variables leaves his theory unable to incorporate empirically established legal
variables. As such, the scope of Black’s theory is more limited than Black claims (he is not
explaining all of legal behavior), and the theory is not as exhaustive as it could be.
Sociologists like Black who turn a blind eye to the role of legal phenomena to help understand law
de-emphasize the importance of learning about the “emergence, articulation, and purpose” of legal
prescriptions and definitions. Because the theories of legal doctrines and particular cases (which
identify the relevant legal variables) are themselves constructed and vary over time and across place,
they, too, need to be considered. As we shall see, one of Max Weber’s classic typologies in the
study of society involved legal thought, and legality was an inherent part of his larger construct of
rationality and its more specific application, bureaucracy.
23
Once Black defines law and identifies the social dimensions that are most likely to relate to law, he
has the necessary building blocks to deduce a very general hypothetical statement: “[Law] varies
with every aspect of its social environment—vertical, horizontal, cultural, organizational, or
normative.” Black, 1976:4. Indeed in most of the rest of his book, Black seeks to elaborate more
specific hypotheses between the behavior of law and these dimensions of social life, many of which
are testable. In the process he incorporates prior research; those empirical propositions lend
credibility to the basic arguments.
Black offers over 25 formal hypotheses in his book. They share two features. The relationships
between the concepts are posited to be only correlative; Black does not identify causes and effects.
The hypotheses are not contextualized; Black assumes the relationships hold from one place to
another for all times.
We will review Black’s (1976:107-108) specific hypothesis that law varies inversely with other
social control to illustrate his approach.
This principle explains many known facts.... In rural Mexico, for instance, one
community has more family control than another, and this explains why its marital
disputes are less likely to go to court...(Nader and Metzger, 1963:589,591). ...In
modern America as well, family disputes are less likely to go to law than disputes
of other kinds ... The police are less likely to hear about a crime within a family
than a crime between strangers...If police hear about a crime within a family, they
are less likely to recognize it as such, whether by writing an official report (Black,
1970:740-741) or by making an arrest (Black, 1971:1097-1098). It is less likely to
be prosecuted (Hall, 1952:318)....
24
This kind of post hoc marshaling of research evidence may help shore up the arguments, but the
preferred approach for “testing” a hypothesis about external observable phenomena is to design a
study and gather data for that express purpose. An a priori approach usually affords a better
opportunity for the researcher to falsify the hypothesis.
C. Adding a Bone to the Skeleton
We conducted some research that examined Black’s hypothesized inverse relationship between
law and other kinds of social control. It took advantage of a natural experiment that occurred
when governmental social control was severely disrupted by Hurricane Andrew. A research
objective was to see whether more informal social control efforts filled the void. The following
is excerpted from Akers, Lanza-Kaduce, Cromwell, and Dunham, 1994).
“The central proposition in Black’s theory of the behavior of law is that “Law varies inversely
with other social control” (Black, 1976:6). This means not only that “law is stronger where other
social control is weaker, “ but inversely, other social control is stronger when law becomes
weaker (Black, 1976:107; Lessan and Sheley, 1992). ...
There are a number of specific questions that flow from this general perspective. To what extent
and for how long did social order break down under the extreme conditions of hurricane
destruction? Did the breakdown reach the point where formal social control exercised by law
enforcement essentially ceased to function? If so, to what extent did individuals, families,
neighbors, and other groups absorb social control functions before the emergency military, law
enforcement, and other agents of formal control moved into the area? What forms did this
informal social control take? Did the storm contribute to social disorganization or foster more
cohesive groups with informal control capabilities? To what extent did pre-existing private
organizations, such as neighborhood crime watch groups or homeowners/neighborhood
associations, provide social control functions? ...
The primary data collection technique was semi-structured interviews with residents of the
neighborhoods in the destructive path of the hurricane (N=101). ... Also an open-ended survey
instrument was distributed to and self-completed by law enforcement officers (N=56)....
For the residents’ interviews, we selected several areas in the damage zone that were
geographically dispersed, ranging from neighborhoods that were hardest hit to those that were
less damaged. The neighborhoods represented a cross-section of economic and ethnic
composition. Interviewers went into each of these areas and approached residents on an
available-and-agreeable basis. ...The police respondents came from 15 departments, with the
majority (37) from departments in the hardest hit areas. ...
The interviews with residents of the affected areas concentrated on informal actions and
reactions to maintain or assert social control. We asked open-ended questions about their
perceptions, actions, and observations regarding threat or occurrences of crime and deviance, the
maintenance or breakdown of law enforcement, fear of crime, and informal actions by
individuals and groups in the immediate area to deal with the perceived or actual threat to social
order and safety.
25
The basic sociological observation that external threat and danger enhances social solidarity
applies to the residents in the hurricane-affected areas. Previous research has shown this is the
typical reaction, contrary to public myths about the inevitability of panic, conflict, and disorder
in the wake of disaster (Wenger, et al., 1976; ... Drabek, 1986:179-80). ... The behavior of the
citizens of the Miami/Dade County area following Hurricane Andrew conformed to this pattern.
...In the immediate aftermath of the hurricane people were drawn together in mutual aid and
protection. Even in neighborhoods that had been mainly residential collections of strangers prior
to the storm, solidarity grew in response to the storm afterwards. ...
A key part of this heightened sense of mutual dependence and social cohesion was an informal
system of control that came into operation almost immediately to guard property and help to
maintain order during the time when local law enforcement ws hampered and before the National
Guard and other emergency military units came into the affected area. The usual agencies of
formal control such as the police and sheriffs become completely disabled only briefly during the
height of the storm. However, formal control did essentially disappear from most neighborhoods
for some time ranging from one or two days up to more than two weeks. Because of physical
obstructions such as fallen trees and downed power lines, the police were unable to get into the
neighborhoods and there was a general overload of order maintenance and law enforcement
demands that simply could not be met. Also, the shut down of electricity and telephones made it
nearly impossible to call on the police. Even when telephone service was re-established, many
neighborhoods could not rely on the availability of local law enforcement because they were
stretched so thin. Moreover, the residents believed that the police had to be in other places
where they were more needed and that they could take care of the situation until more routine
order could be reestablished.
Almost all respondents reported that citizen patrols, looking out for one’s own property and that
of absent neighbors, and other actions were taken right away to protect against looting,
vandalism, and other possible dangers. Both in the residential areas and at intersections where
the usual traffic controls were absent, individuals and groups took it upon themselves to direct
traffic and drivers were especially cautious and courteous to avoid accidents. Traffic accidents
went down during the time that stop lights and signs were knocked out, even though traffic
volume was fairly heavy as people tried to get back and forth to home and as relief convoys
arrived.
These individual and group actions were seen as needed in the absence of formal agents of law
and order such as the police. They were not planned ahead of time as part of disaster
preparations. There was an awareness that these informal efforts were stop-gap measures that
probably could not endure for long. There was a palpable sense of welcome and relief when
formal authority reappeared ....
In short, our analysis of the interview data on the disaster situation of Hurricane Andrew is
consistent with the reciprocal relationship between formal and informal social control postulated
by Black ... Only two of the respondents saw little or no informal control or cooperation among
the neighbors.
Pre-existing neighborhood organizations such as homeowners’ or tenants’ associations or
neighborhood crime watches played little role following Hurricane Andrew. These organizations
either did not exist in most neighborhoods or were not utilized in the informal control efforts
26
following the storm. The law enforcement officers in the study also recognized the informal
organization of the neighborhoods in protecting their property, bonding together, and watching
out for neighbors through watches and patrols, and directing traffic. ...”
This research supports Black’s contention. Less law results not in chaos but in informal social
control. The looting after Hurricane Andrew was confined to the commercial areas; the
neighborhoods themselves remained organized as informal control filled the gap. (The findings
also illustrate how unusual Black’s definition of anarchy is. Less law means more anarchy to
Black, but the kind of lawlessness and chaos we usually associate with anarchy did not emerge in
the residential neighborhoods.) The research finding fits with other research of other disasters
and so is not limited in scope. It seems that informal control generally replaces any breakdown
in formal legal control.
D. Does Black’s Constructed Model Stand?
As the previous section illustrates, Black’s theory can be researched, and at least some of that
research supports the framework. Our assessment of his model overall, however, is decidedly
mixed.
On the one hand, Black has encouraged us to examine the behavior (i.e., the observable
outcomes) of law. But he has ignored how our ideas about justice and law might affect those
outcomes.
Black’s framework, taken in its entirety, is relatively explicit—we know which constructs are
being linked and the logic of their connections. On the other hand, some central concepts are not
defined well (e.g., social control) or are defined in narrow ways (e.g., law or anarchy).
Furthermore, some philosophical assumptions remain hidden. For example, Black is not explicit
about how he analyzes groups. The fact that he ignores individual legal actors, decisions, and
outcomes suggests that he assumes that group properties are not reducible to individuals (i.e., his
argument seems to accept social emergence). Black is also silent about how citizens become
involved in government social control, although he insists that such involvement is a defining
characteristic of law.
Black is ambitious in trying to explain the behavior of law generally. His framework is abstract
and seeks to be comprehensive and parsimonious. But Black may reach too far and oversimplify
too much. The scope of coverage is illusionary in that he ignores legally-relevant variables. His
radical social reaction definition of deviance/illegality artificially simplifies the phenomenon in
that he completely disregards the possibility that people’s behaviors instigate the legal reactions.
Black deserves credit for clearly indicating what referents to look for in the study of law and
society and for explicitly positing that referents could be quantified and measured. This
enhanced the testability of his theory—as is evidenced by his book full of hypotheses. Yet some
of his assertions seem tautological (e.g., law predicts illegal behavior) or invite others to extend
him in tautological ways (e.g., repealing law will increase anarchy). See also Michaels, 1978.
The testability of Black’s hypotheses cannot be taken for granted, and their operationalization for
research takes care.
27
Our recent research demonstrates that some of Black is testable. Moreover, we found empirical
support for his hypothesis that law (governmental social control) is inversely related to other
forms of social control. Research on other hypotheses, however, has been less supportive (see,
for example, Lessan and Sheley, 1992).
OUTFITTING THE EXPEDITION
To this point we have identified a destination: We want to locate a theoretical understanding of
the relationships between law and society. We have inventoried the tools needed for theory
construction, and we have begun to train with them using Black’s behavior of law. But that
training has been incomplete partly because Black adopted a rather idiosyncratic
conceptualization of law and oversimplified the dimensions of society that might be important in
the undertaking. The next step to outfit an expedition into law and society will be to consider the
concepts of law and social structure in more comprehensive ways.
The next chapter on Bridging Law and Social Structure provides an introduction to social
structure as it relates to law. In some ways, the social structural concepts will help us see how to
think about many of the complexities in law.
One of the complications is how we construct law. We will deal explicitly with three dramatic
examples in class. The only place to get these lessons will be in class so attendance is
recommended.
The first will be a dramatic example coming from Currie (1973) of the legal construction of
witchcraft. It reviews a historical illustration of how people construct ideas about law which
may be completely without material foundation. These ideas, nonetheless, produce legal
outcomes (which in the case of witchcraft were particularly lethal). The outcomes can be
directly observed and measured. The presentation also illustrates how differences in
“procedural law” or “secondary rules” affect outcomes.
The second example will illustrate the importance of the courtroom work group (and legal
specialists) in developing informal law that can supersede the “black letter” law in plea
bargaining. It focuses on the gap between the “black letter” law or the law in the books and the
“law in action,” a classic concern of the legal realists.
The final example more specifically focuses on legal fictions—constructions that we have reason
to believe may be false. It illustrates the use of a modern set of fictions to help produce legal
outcomes in drunk driving cases and raises the prospect that even we sophisticated moderns have
our “witches.” The reading also relies on Fuller’s jurisprudential theory of legal fictions to
understand why and how fictions are used.
The centrality of social constructions to the study of law invites us to look at the phenomenon
more generally. All of social life may be affected by our constructions or ideas. Berger and
Luckmann’s (1966) classic little book analyzes the social construction of reality; we will review
their insights in class (the book is not required). They discuss how people objectify their ideas,
how institutions develop that have externalized consequences. In other words, they describe how
and why law has an idealist and materialist cast. They begin to bridge the ontological chasm.
28
When they do so, they rely on concepts important to law (e.g., institutionalization, legitimacy,
social control, socialization).
29
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34