What Is Wrong About Donald Black's Theory of Law?

What is wrong about Donald Black's theory of law?

In his book on "The Behavior of Law" Donald Black attempts to describe and explain the conduct of law as a social phenomenon. His theory of law does not consider the purpose, value, impact of law, neither proposes any kind of solutions, guidance or judgment; it plainly ponders on the behavior of law. The author grounds his theory purely on sociology and excludes the psychology of the individual from his assumptions on the behavior of law (Black 7). The theory of law comes to the same outcome as other theories scrutinizing the legal environment, such as deprivation theory or criminal theory; however, the former concentrates on the patterns of behavior of law, not involving the motivation of an individual as such. In this respect, Black's theory is blind for social life, which is beyond the behavior of law.

Law, "a governmental social control" (Black 2), is a quantitative variable that changes in time and space and can be defined by style: penal, compensatory, therapeutic or conciliatory (Black 5). The brief description of law and its interrelation with social control and deviant behavior can be encapsulated in the following scheme. This concept of law put into the context of social life gives a framework of the behavior of law.

Donald Black breaks social life into several variables, such as stratification, morphology, culture, organization and social control. All these aspects are quantitative variables in time, space and across the settings. In contemporary social life they intertwine between each other and relate to law and deviant behavior.

According to Black's definition, stratification is "the vertical aspect of social life", "any uneven distribution of the material conditions of existence" (Black 11), in other words the discrimination of wealth. Stratification can be measured in quantity, delineated in style and viewed from two perspectives, as a "magnitude of difference in wealth" (Black 11) and as the level to which the setting is stratified. Moreover, stratification explains not only law, its quantity and style, but also other aspects of social life. The relationship Black is mostly interested in is the positive correlation between stratification and law, meaning the more law, the more stratified the setting is. When utilizing this proposition by inserting other variables of social life, such as etiquette or privacy, the quantity and style of law in a given context is predictable and explainable.

Another central variable of social life is morphology, the allocation of people in comparison to each other. It also has dimensions such as differentiation and intimacy, which can be connected in the same way as stratification to the behavior of law, however, resulting in the curvilinear correlation (Black 39). The more law, the more differentiation and intimacy exists in a setting; however, this positive correlation continues until there is some kind of interdependency between people, at the point of symbiosis law reaches its peak and starts decreasing. Black discovers many other similar correlations, establishing a chain of reasoning on the behavior of law worldwide, in different time lines and across different settings.

Donald Black follows similar reasoning when analyzing other dimensions of social life, the symbolical aspect of culture and the corporate aspect of organization. The interrelationship between culture and law as well as organization and law results in positive correlation. More educated and/or literate people are more litigious than people having less cultural background. Analogously, the more organized institution is, the more litigious it is. Subsequently, these assumptions have an impact on deviant behavior, the less culture people have, the more likely their behavior will be deviant, the more likely they will be exposed to the law and the more painful legal process they will undergo. Same as, the more centralized organization is, the less likely it will deviate.

The last social variable, according to Donald Black, is social control, the normative aspect. It responds and defines who is deviant and who is respectable. Negative correlation describes the relationship between law and social control, the more law is in a setting, the less of alternative means of social control persist in a setting.

Following Donald Black's grounding one can distinguish clear patterns and conditions of his theory. He reduces the social life into five extensive blocks, five variables constituting from a number of other sub aspects and traces the behavior of law while these variables change. He points out that all central aspects of social life - stratification, morphology, culture, organization and social control - vary "in time and space"