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The Behavior of Law
This book contains a number of propositions about the variation of law across social space. The purpose of these propositions is to predict and explain this variation, and so to contribute to a scientific theory of law. Theory of this kind has practical applications, and also applications to the study of other social life.
175 pages, Paperback
First published January 1, 1976
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August 29, 2022
Donald Black is a brilliant mind in the world of sociological and criminological theory. Bringing new perspective in a field full of repetition. I will say Moral Time by Black presents a stronger understanding of the social world in an easier to digest and discuss manner. The Behavior of Law being a bit more dense. A quick read however.
August 17, 2021
Donald Black (2010) presents a sociological, quantified theory of law using five propositions. The theory does not explain the behavior of individuals but rather of law. Power differentials are important to consider when police misconduct occurs; a police officer is protected by the law and represented by municipalities with political and economic resources not available to individuals filing claims for misconduct. The power differential between the municipality and the claimant may impact how the claimant is treated, what kind of offer is made (if any), and how fast the claim the resolved.
Black’s propositions are not explicitly about police misconduct or civil claims; that said, I have applied each proposition to a different aspect of the civil claimants. A claimant with more power may have more influence over the process. The first proposition is stratification. Stratification is the “vertical aspect of social life;” it is the “uneven distribution of the material conditions of existence” (p. 11). The more wealth one has, the greater the vertical distance. As this relates to the quantity of law, those with more wealth have more law; the inverse is also true: those with less wealth have less law (p. 17). Law punches downward; deviance, therefore, is more serious if it moves upward (i.e., if someone from a lower socioeconomic status violates someone of higher status then more law is applied against the violator). Stratification, for the purposes of this study, can be understood in the context of a claimant’s socioeconomic status. Someone who is wealthy has a much better chance of winning a claim than someone who lives in poverty.
Morphology is the second proposition of Black’s behavior of law. This is the “horizontal aspect of social life—the distribution of people in relation to one another” (p. 37). This means that law between spouses, for example, is “inactive . . . [but] increasing as the distance between people increases but decreasing as this reaches the point at which people live in entirely separate worlds” (p. 41). Morphology also explains that “the larger and denser a community . . . the higher will be its rate of litigation” (p 46). People “in or near the center of social life have more law than those farther out” (p. 49); those people who exist in “marginal groups have less law among themselves” (p. 49). For example, claimants that are Black, disabled, and female have a decreased chance of winning a claim or being offered a substantial settlement because they are considered marginal, not central to social life, by the dominant culture.
The third proposition is culture. There is a direct relationship between culture and law. When culture is sparse, so is law. When culture is abundant and thriving, so is law (p. 63). Law is greater in the direction of less culture; in other words, the quantity of law increases against individuals, groups, or societies that are deemed to have less culture (pp. 65-66). Another aspect of culture is conventionality. This refers to how closely individuals or groups adhere to common societal patterns (i.e., the mainstream or dominant culture). If an individual is extremely eccentric, then their conventionality would be low as compared with conventional people. People that adhere to the dominant cultural patterns of existence are people with high conventionality. Law, as a quantity, is greater when it moves toward those with low conventionality (p. 69). In other words, those people who file claims and are not a part of dominant cultural groupings will have a harder time winning a claim than a claimant who is very conventional.
The fourth proposition is organization. This proposition can be understood as the “presence and number of administrative officers, the centralization and continuity of decision making, and the quantity of collective action itself” (p. 85). The quantity of law is greater in the direction of less organization than more. For example, if a business calls the police about a potential shoplifter the police are more likely to respond and make an arrest. Inversely, if an individual calls the police because a business is polluting a river, it is unlikely that the police will show up—let alone arrest the business owner. Municipalities are corporate bureaucracies; as such, according to Black, they have more law on their side because they are a well-organized entitles. The size and complexity of the City as an organization means that a claimant has less chance of winning a claim as an individual versus a police officer who is employed and represented by a municipality, which has a glut of resources and expertise to draw on to defend the officer against allegations of wrong-doing.
The last proposition is social control. Law is greater or stronger where other forms of social control are weaker (p. 107). Social control “defines and responds to deviant behavior, specifying what ought to be: What is right or wrong, what is a violation, obligation, abnormality, or disruption” (p.105). While law is a type of social control, other forms exist as well: “etiquette, custom, ethics, bureaucracy, and the treatment of mental illness” (p. 107). Social control defines deviance and it also defines respectability; “the more social control, the less respectable the offender” (p. 111). Black suggests that a person who is subject to social control through the criminal courts is less respectable. The level of respectableness decreases with the severity of the crime. A person who has a prior criminal record—a less respectable person—will have a harder time winning a claim against the City compared with a claimant who does not have a criminal record.
Empirical testing of Black’s propositions finds mixed support (Avakame et al., 1999; Chappell & Maggard, 2007; Gottfredson & Hindelang, 1979; Hembroff, 1987; Lessan & Sheley, 1992; Sampson, 2012; Xie & Lauritsen, 2012). What is important here, is his conceptualization of law as a quantity and how the quantity of law applies to civil claims for police misconduct. The greater the amount of law afforded to a municipality that defends itself from claims, the less chance there is that the claim will succeed. These power differentials, as described by Black, may explain why some people take settlements and others do not or why some people prevail substantially in their cases and others do not. The Behavior of Law is a fascinating look at the sociology of law as a quantity. I recommend.
Black’s propositions are not explicitly about police misconduct or civil claims; that said, I have applied each proposition to a different aspect of the civil claimants. A claimant with more power may have more influence over the process. The first proposition is stratification. Stratification is the “vertical aspect of social life;” it is the “uneven distribution of the material conditions of existence” (p. 11). The more wealth one has, the greater the vertical distance. As this relates to the quantity of law, those with more wealth have more law; the inverse is also true: those with less wealth have less law (p. 17). Law punches downward; deviance, therefore, is more serious if it moves upward (i.e., if someone from a lower socioeconomic status violates someone of higher status then more law is applied against the violator). Stratification, for the purposes of this study, can be understood in the context of a claimant’s socioeconomic status. Someone who is wealthy has a much better chance of winning a claim than someone who lives in poverty.
Morphology is the second proposition of Black’s behavior of law. This is the “horizontal aspect of social life—the distribution of people in relation to one another” (p. 37). This means that law between spouses, for example, is “inactive . . . [but] increasing as the distance between people increases but decreasing as this reaches the point at which people live in entirely separate worlds” (p. 41). Morphology also explains that “the larger and denser a community . . . the higher will be its rate of litigation” (p 46). People “in or near the center of social life have more law than those farther out” (p. 49); those people who exist in “marginal groups have less law among themselves” (p. 49). For example, claimants that are Black, disabled, and female have a decreased chance of winning a claim or being offered a substantial settlement because they are considered marginal, not central to social life, by the dominant culture.
The third proposition is culture. There is a direct relationship between culture and law. When culture is sparse, so is law. When culture is abundant and thriving, so is law (p. 63). Law is greater in the direction of less culture; in other words, the quantity of law increases against individuals, groups, or societies that are deemed to have less culture (pp. 65-66). Another aspect of culture is conventionality. This refers to how closely individuals or groups adhere to common societal patterns (i.e., the mainstream or dominant culture). If an individual is extremely eccentric, then their conventionality would be low as compared with conventional people. People that adhere to the dominant cultural patterns of existence are people with high conventionality. Law, as a quantity, is greater when it moves toward those with low conventionality (p. 69). In other words, those people who file claims and are not a part of dominant cultural groupings will have a harder time winning a claim than a claimant who is very conventional.
The fourth proposition is organization. This proposition can be understood as the “presence and number of administrative officers, the centralization and continuity of decision making, and the quantity of collective action itself” (p. 85). The quantity of law is greater in the direction of less organization than more. For example, if a business calls the police about a potential shoplifter the police are more likely to respond and make an arrest. Inversely, if an individual calls the police because a business is polluting a river, it is unlikely that the police will show up—let alone arrest the business owner. Municipalities are corporate bureaucracies; as such, according to Black, they have more law on their side because they are a well-organized entitles. The size and complexity of the City as an organization means that a claimant has less chance of winning a claim as an individual versus a police officer who is employed and represented by a municipality, which has a glut of resources and expertise to draw on to defend the officer against allegations of wrong-doing.
The last proposition is social control. Law is greater or stronger where other forms of social control are weaker (p. 107). Social control “defines and responds to deviant behavior, specifying what ought to be: What is right or wrong, what is a violation, obligation, abnormality, or disruption” (p.105). While law is a type of social control, other forms exist as well: “etiquette, custom, ethics, bureaucracy, and the treatment of mental illness” (p. 107). Social control defines deviance and it also defines respectability; “the more social control, the less respectable the offender” (p. 111). Black suggests that a person who is subject to social control through the criminal courts is less respectable. The level of respectableness decreases with the severity of the crime. A person who has a prior criminal record—a less respectable person—will have a harder time winning a claim against the City compared with a claimant who does not have a criminal record.
Empirical testing of Black’s propositions finds mixed support (Avakame et al., 1999; Chappell & Maggard, 2007; Gottfredson & Hindelang, 1979; Hembroff, 1987; Lessan & Sheley, 1992; Sampson, 2012; Xie & Lauritsen, 2012). What is important here, is his conceptualization of law as a quantity and how the quantity of law applies to civil claims for police misconduct. The greater the amount of law afforded to a municipality that defends itself from claims, the less chance there is that the claim will succeed. These power differentials, as described by Black, may explain why some people take settlements and others do not or why some people prevail substantially in their cases and others do not. The Behavior of Law is a fascinating look at the sociology of law as a quantity. I recommend.
February 19, 2019
This book builds on and surpasses Durkheim and Weber in constructing a pure social theory of law, with implications of a pure sociology for every other facet of social life. That Donald Black does this in about 147 pages is testimony to the clarity, conciseness, and logical rigor of his thought. It is surprisingly easy to read and amazing that he is able to illustrate and back his arguments with evidence from such a wide range of historical, anthropological and other social research.
The book raises all kinds of issues that need to be addressed in depth – and he has spawned a literature which seems quite well known in sociology but – at least in my experience – is unknown in economics. I think all social scientists today, including economists, should grapple with this book and its implications. I'll just mention a few of them here.
First, even more than Durkheim, he insists on treating social facts as social facts, and not as some confluence of individual or subgroup behaviors. In this, the work aligns more closely with modern complexity theory which would treat social phenomena as emergent properties – not aggregations. I see this as a direct challenge to social theorists like Elster (methodological individualism). But for the field I know best – economics – it exposes the simplistic theorizing done in macroeconomic (and some microeconomic) modelling. It seems to me that mainstream macroeconomics has pushed aside theorists who address macroeconomic phenomena as emergent properties (e.g., think of the ways the paradox of thrift has been driven to the margins), in favor of those who rely on characterizing "representative" consumers and producers.
To give a taste of this, here's an example of a social fact when he hypothesizes that: "Law varies inversely with other social control." He then tests this inverse relationship along numerous dimensions. Family members are less likely to sue another family member or report them to the police than they are with respect to those outside their family. In societies where family control of its members is weaker, the tendency to resort to the law is greater than in societies where family control of its members is stronger. The same logic applies to organizations (think corporations) or through time in the same society.
Second, each chapter details how this theory of social laws provides a contrasting but equally powerful explanatory system for behaviors which are more frequently explained as outcomes of individual psychology, rational choice, or subgroup cultures. In Black's framing of social phenomena, it isn't the culture or psychology of deviants which makes them deviant. Instead, he poses a theory in which deviance is created by the way law names, isolates and punishes individuals based on their social location (which he defines explicitly and thoroughly). It situates the "problem" of deviance in the exercise of social power rather than individual or subgroup behavior. The risk of the latter approaches occurs when it slips into 'blaming the victim' or excusing the deviant due to contextual determination. By extracting social theory from either of these pitfalls, Black is giving us a very powerful new way to look at deviance. Any social science which concentrates on individuals and subgroup cultures should keep this in mind as a corrective for interpreting their results and developing their research agendas. Today's behavioral economics is incredibly rich and fruitful, but would do well to consider these implications for its own progress.
Third, in the interest of creating a social science, Black has proposed a series of testable hypotheses which require eliciting information about inequities, power, and exploitation but which at the same time do not rely on any value judgments. The theory does not eliminate, obviate or ignore values. Indeed, Black's observations and references to historical and anthropological accounts of inequity and the exercise of power are essential to his hypotheses of how law behaves. But it does generate a space for inquiry which distinguishes between positive and normative claims in a way that I would not have thought possible before reading this book.
Black admits at one point that he is a "child of the sixties", mostly in terms of his delight in fresh thinking and creativity. I think this is true for the books strengths as well as its flaws. If Black were writing this book today, there are two ways I suspect it would differ. First, though he openly and regularly recounts the facts of discrimination and subjugation of women, too many of his illustrative examples betray themselves as stuck in the past by his use of pronouns. That could be easily remedied in a revised version.
The second way it might differ is in the final chapter where he speculates on the future directions of society. He lays out a plausible argument, projecting from the past, that increased intercommunication among peoples leads to greater interdependence, homogenization of language, and interchangeability which, in turn, could lead to a social condition with less law than in today. In an age with resurgent populist and fascist movements, in which people ingeniously invent artificial divisions and assign importance to insignificant differences between groups so as to gain power and exploit others, the implicit trajectory described by Black seems less likely and certainly less inevitable than it might have in 1976. Addressing this particular aspect of the book probably requires another book.
Obviously, this had a big impact on me. It strengthened some ways of thinking, challenged others, and now I've got a whole new literature that I have to read – the work his book has inspired.
The book raises all kinds of issues that need to be addressed in depth – and he has spawned a literature which seems quite well known in sociology but – at least in my experience – is unknown in economics. I think all social scientists today, including economists, should grapple with this book and its implications. I'll just mention a few of them here.
First, even more than Durkheim, he insists on treating social facts as social facts, and not as some confluence of individual or subgroup behaviors. In this, the work aligns more closely with modern complexity theory which would treat social phenomena as emergent properties – not aggregations. I see this as a direct challenge to social theorists like Elster (methodological individualism). But for the field I know best – economics – it exposes the simplistic theorizing done in macroeconomic (and some microeconomic) modelling. It seems to me that mainstream macroeconomics has pushed aside theorists who address macroeconomic phenomena as emergent properties (e.g., think of the ways the paradox of thrift has been driven to the margins), in favor of those who rely on characterizing "representative" consumers and producers.
To give a taste of this, here's an example of a social fact when he hypothesizes that: "Law varies inversely with other social control." He then tests this inverse relationship along numerous dimensions. Family members are less likely to sue another family member or report them to the police than they are with respect to those outside their family. In societies where family control of its members is weaker, the tendency to resort to the law is greater than in societies where family control of its members is stronger. The same logic applies to organizations (think corporations) or through time in the same society.
Second, each chapter details how this theory of social laws provides a contrasting but equally powerful explanatory system for behaviors which are more frequently explained as outcomes of individual psychology, rational choice, or subgroup cultures. In Black's framing of social phenomena, it isn't the culture or psychology of deviants which makes them deviant. Instead, he poses a theory in which deviance is created by the way law names, isolates and punishes individuals based on their social location (which he defines explicitly and thoroughly). It situates the "problem" of deviance in the exercise of social power rather than individual or subgroup behavior. The risk of the latter approaches occurs when it slips into 'blaming the victim' or excusing the deviant due to contextual determination. By extracting social theory from either of these pitfalls, Black is giving us a very powerful new way to look at deviance. Any social science which concentrates on individuals and subgroup cultures should keep this in mind as a corrective for interpreting their results and developing their research agendas. Today's behavioral economics is incredibly rich and fruitful, but would do well to consider these implications for its own progress.
Third, in the interest of creating a social science, Black has proposed a series of testable hypotheses which require eliciting information about inequities, power, and exploitation but which at the same time do not rely on any value judgments. The theory does not eliminate, obviate or ignore values. Indeed, Black's observations and references to historical and anthropological accounts of inequity and the exercise of power are essential to his hypotheses of how law behaves. But it does generate a space for inquiry which distinguishes between positive and normative claims in a way that I would not have thought possible before reading this book.
Black admits at one point that he is a "child of the sixties", mostly in terms of his delight in fresh thinking and creativity. I think this is true for the books strengths as well as its flaws. If Black were writing this book today, there are two ways I suspect it would differ. First, though he openly and regularly recounts the facts of discrimination and subjugation of women, too many of his illustrative examples betray themselves as stuck in the past by his use of pronouns. That could be easily remedied in a revised version.
The second way it might differ is in the final chapter where he speculates on the future directions of society. He lays out a plausible argument, projecting from the past, that increased intercommunication among peoples leads to greater interdependence, homogenization of language, and interchangeability which, in turn, could lead to a social condition with less law than in today. In an age with resurgent populist and fascist movements, in which people ingeniously invent artificial divisions and assign importance to insignificant differences between groups so as to gain power and exploit others, the implicit trajectory described by Black seems less likely and certainly less inevitable than it might have in 1976. Addressing this particular aspect of the book probably requires another book.
Obviously, this had a big impact on me. It strengthened some ways of thinking, challenged others, and now I've got a whole new literature that I have to read – the work his book has inspired.
June 17, 2022
I recommend this book, if you get it for free
“If all of these trends continue, a new society will come into being, possibly centuries from now, possibly sooner. It will be a society of equals, people specialized and yet interchangeable; a society of nomads, at once close and distant, homogenous and diverse, organized and autonomous, where reputations and other statuses fluctuate from one day to the next. The past will return to some degree, yet society will be different. It will be communal and situational at the same time, a unity of opposites, a situation society. To some degree, moreover, anarchy will return. But it will be a new anarchy, as new as society itself, neither communal nor situational, and yet both at once. If these trends continue, then, law will decrease. It might even disappear”
“If all of these trends continue, a new society will come into being, possibly centuries from now, possibly sooner. It will be a society of equals, people specialized and yet interchangeable; a society of nomads, at once close and distant, homogenous and diverse, organized and autonomous, where reputations and other statuses fluctuate from one day to the next. The past will return to some degree, yet society will be different. It will be communal and situational at the same time, a unity of opposites, a situation society. To some degree, moreover, anarchy will return. But it will be a new anarchy, as new as society itself, neither communal nor situational, and yet both at once. If these trends continue, then, law will decrease. It might even disappear”
June 27, 2024
It has been twenty years since I read it, yet I have not forgotten how persuasively Black describes how, given enough info about the parties involved, the outcome of every legal case in every country and every age can be predicted.
A friend of mine with little wealth or standing was in the midst of a legal fight with "City Hall". He used the information in the book to help him level the playing field, and plan his strategy. He came out on top.
A friend of mine with little wealth or standing was in the midst of a legal fight with "City Hall". He used the information in the book to help him level the playing field, and plan his strategy. He came out on top.
August 8, 2025
read this a long time ago, feels like the theory has remained applicable even after all the changes in the last 20 years
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