Theory Of The Behavior Of Law Essay
, Research Paper
DONALD BLACK S
THEORY OF THE BEHAVIOR OF LAW
DAPHNE A. GRAHAM
Donald Black, author of Behavior of Law, can be described as a conflict theorist. The conflict criminologist would argue that societies are composed of groups with conflicting values and interest. The groups with the most power shape the laws of their society. This creates an inverse relationship between power and official crime rates. People with less power are more likely (and people with more power are less likely) to be officially defined as criminals. While many conflict theorists focus on relationships of society at the individual level, Black focused on relationships of social groups as a whole not at the individual level. According to his theory, social groups possess five dimensions of social life: stratification, morphology, culture, organization, and social control (Vold, Bernard, and Snipes, 1998). All of which try to explain deviant behavior.
To preface his theory, Black describes law as a quantitative variable, meaning there is more law established in some places than others. 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 (Black, 1976, p. 3). Another fundamental point is law can vary according to its style, which can also be quantitative. Four different styles of social control are penal, compensatory, therapeutic, and conciliatory. Penal law is enforced by a group against an offender; with compensatory law the victim demands payment; and with therapeutic and conciliatory law the deviant himself seeks services to improve his or her condition.
By addressing the quantity and styles of law, Black attempts to explain the variations of each (Vold et al., 1998). Both of these propositions states a relationship between law and another aspect of social life stratification, morphology, culture, organization, or social control (Black, 1976, p. 6). This relationship can be considered an inverse one: when the quantity of law increases the quantity of social control of these other kinds decreases, and vice versa (1976).
Social control defines what in a society is considered deviant behavior, and the more social control there is, the more deviant the conduct is. According to Black, the theory of law predicts the definitions of law, as well as, the crime rate. For example, a juvenile without social control at home is more likely to become criminal since crime is defined by law and law increases as other social control decreases (Black, 1976).
Stratification, the first dimension of this theory, is considered to be the vertical aspect of social life (Black, 1976). This means that society is stratified into vertical layers mostly determined by wealth. This wealth often determines legal advantage. Therefore, law varies directly with stratification. The more stratification a society has, the more law it has. Deviant behavior, according to this theory, varies inversely with rank (Black, 1976).
The second dimension, morphology, is the horizontal aspect of social life, the distribution of people in relation to one another, including their division of labor, networks of interaction, intimacy, and integration (Black, 1976). Within each vertical layer, there is a hierarchical structure, which differentiates each person in the layer from the others. Law is greater when a society is more independent, and less when more intimate. Relational distance determines this intimacy. It also predicts and explains the style of law, whether penal and compensatory, or therapeutic and conciliatory. Complete strangers are more likely to see each other as adversaries, whereas intimates are more likely to offer help. Those individuals who are considered marginal, or poorly integrated in their layer, will most likely be singled out and blamed for deviant acts (Black, 1976).
Culture, the third dimension, is the symbolic aspect of social life, including expressions of what is true, good, and beautiful (Black, 1976, P. 61). Law varies directly with culture. Where culture is sparse, so is law; where it is rich, law flourishes. Just as individuals have intimacy or distance so can cultures. Distance creates subcultures. According to Black s theory, members of a subculture are more vulnerable to the law. Their behavior is considered more deviant and they are more likely to be punished harshly (1976).
The fourth dimension, organization, is the corporate aspect of social life, the capacity for collective action (Black, 1976, p.85). Like culture, law varies directly with organization. For example, during a war or a crisis such as a flood, organization increases in order to centralize the state . Thus, law increases. Law is also less likely to label behavior by organizations as deviant than it is an individual (Black, 1976).
The last dimension, social control, is the normative aspect of social life. It defines and responds to deviant behavior, specifying what ought to be: What is right or wrong, what is a violation, obligation, abnormality, or disruption (Black, 1976, p. 105). Law varies inversely with social control. Law is stronger where social control is weaker. The police are less likely to be called about a crime within a family than a crime between strangers who have no social control of their own. With juveniles, the more parental social control, the less likely he or she is to be subject to the law. The labeling theory is often applied to social control by other theorists. However, Black omits the individual aspect, and states that social control makes a deviant worse. The whole process: arrest, conviction, and incarceration, will forever be with the criminal and will prohibit future opportunities (Black, 1976).
Donald Black combines these five dimensions: stratification, morphology, culture, organization, and social control to explain why some behavior is considered deviant and other behavior is not. The general conclusion is that of a conflict theorist, wealth and power across several types of relationships are inversely related to the crime rate. Black s theory can be considered behavior of the criminal law because his main points share the same characteristics. When the social solidarity of a society is threatened, criminal punishment increases; and the enactment and enforcement of criminal laws reflect the interests of the most wealthy and influential (Vold et al, 1998).
Gottfredson, M., & Hindelang, M. (1979). A study of the behavior of law. American Sociological Review, 44(1), 3-18.
Gottfredson and Hindelang attempted to test Black s theory by viewing the quantity of law as depending largely on the gravity of the infraction against the legal norms. They claim he ignored the bearing of how the nature of individual behavior effects the behavior of law, and was not explicit about how the objective seriousness of an offense should be handled. For Black, the seriousness of deviant behavior is defined by the quantity of law to which it is subject (Gottfredson and Hindelang, 1978, p.4). But Black left out the consequences of the deviance to the victim. The authors argue that Black, therefore, must interpret injury and monetary loss are not important, or less important than stratification, morphology, culture, organization, and social control (1978).
By using the National Crime Survey, Gottfredson and Hindelang tested Black s stratification dimension. Based on Black s conjecture that criminality varies inversely with rank, the authors therefore followed that the proportion of victims reporting their victimization to the police would increase with rank. However, the findings showed as the gravity of the victimization increases so too does reporting to the police, and do not support Black s prediction that the wealthy are less likely to call upon the law with their dealings with one another. The differences were very small between the wealthy and the poor. Black s stratification hypothesis that wherever people are more equal there is less law was also discounted by information given in the survey. There was only a 4% difference (1978).
Referring to the dimension of morphology, Black contended that law is inactive among intimates. Gottfredson and Hindelang examined the relationship between the size of the community in which the victim resided and the proportion of those who reported victimization. The data did not support Black s hypothesis. At the serious level, the trend of reporting decreased as the size of the place in which the person lived increased. Also, married people were more likely to call the police than those who were not. Another hypothesis was the greater the density of a population, the greater the law. The survey showed that reporting crime decreased as population increased.
Black proposed that an indicator of culture was education, and that the more educated people are, the more likely they were to bring lawsuits against others. Data collected by the survey indicated that regardless of an individual s education level, more serious victimizations are more likely to be reported to the police. While this seems to support Black s theory, the statistics given show that the relationship is weak (1978).
The organizational dimension states that law varies directly with organization. Black claims that the police are more likely to hear about a robbery of a business than a robbery of an individual on the street (Gottfredson and Hindelang, 1978, p. 12). The National Crime Survey deals primarily with individuals. However, a survey of a national probability sample of business establishments is included. The information provided does support Black s theory, but again, it is very weak (1978).
According to Black, social control, the final dimension, is a quantity with which the law varies inversely. Gottfedson and Hindelang used the settings: rural, suburban, and urban to examine variations in reporting. Black s discussion implied that in rural areas, where informal controls are traditionally viewed as stronger, rates of reporting will be lower that the anonymous cities. Again, the data from the survey shows no relationship between urbanization and reporting rates (1978).
The authors conclude that Donald Black s theory of the behavior of law is an important contribution to sociology because of the empirical it raises. However, most of his theories were incompatible with the data derived from the National Crime Survey. The centrality of seriousness to the phenomenon of reporting to the police, particularly in conjunction with the relative weakness of the dimensions at the core of Black s theory of law, suggests that an adequate theory of criminal law must incorporate some measure of the consequences of legal infractions to individuals in order to be an accurate model (Gottfredson and Hindelang, 1978, p. 16).
Cooney, M. (1997) . The decline of elite homicide. Criminology, 35 (3), 381-407.
Mark Cooney uses Donald Black s theory to explain why homicide among the elite has declined over the ages, and is now confined to low-status people. In a different article, Crime as Social Control , Black argues that violent conflict or homicide is a function of the unavailability of law. Cooney reviews the criminological findings and the patterns reported in anthropological and historical literature. Then he incorporates Donald Black s theory to explain the facts.
Homicide is primarily a means by which people handle their conflicts. Cooney refers to Black s concepts of people s relationships and statuses (the five dimensions) to explain further. Vertical, or economical, status is determined by wealth. Studies have shown that measures of economic deprivation consistently emerge as one of the strongest predictors of aggregate rates of homicide (Cooney, 1997, p. 383). The marginality (or radial status) of an offender also comes into play. Marginality can be measured by factors such as employment and marital status. Offenders are usually of low radial status, as well as, single. The cultural status and the normative status are also considered. Homicide offenders are commonly ranked fairly low because of minimal or no education, and/or of racial and ethnic minorities. Prior record is a measure of normative status. Homicide offenders have higher rates of arrest and conviction than the average person has (1997).
The tendency for homicide to be largely confined to low-status groups in not only true in the United States but to most modern countries. However, it was not so in earlier societies. Some examples are feuding between the Appalachian elites, brawling among English gentlemen, dueling among European and Russian nobleman, and lynching among the high-status southerners. Again, Cooney s question is why is there so little high-status homicide now compared to earlier times. One explanation is that of long-term civilizing. The higher echelons began the civilizing process and it is slowly filtering down. However, Cooney uses Black s theory of Self-Help. The poor and marginal are, for the most part, outside of the state s legal system and, therefore, are more likely to be aggressive when solving conflicts. The law seems unavailable because these people invoke it less often, and when they do they receive it less often. They are patrolled, arrested, and convicted more often than those that belong to a higher status group. Thus, the poor do not depend on the law (1997).
Cooney concludes that the protection of the law for the elite renounce lethal conflict (homicide), but the impoverished are not afforded this luxury of protection. Therefore, they must handle their conflicts themselves, which often leads to homicide (1997).
Lessen, G. & Sheley, J. (1992) . Does law behave? A macrolevel test of Black s propositions on change in law. Social Forces, 70 (3), 655-680.
Lessen and Sheley test Donald Black s five propositions at the macro level. They state that Black s theory has helped to conceptualize law in quantifiable terms, but has been subjected to limited empirical testing. Their main interest is how the theory and its independent and dependent variables hold up when subjected to change such as trends in social life .
To measure stratification, Lessen and Sheley borrow Devine s labor-capital income ratio to indicate class-income inequality. To measure morphology, they employed an index of division of labor to indicate quantity of differentiation. For culture, they focused mainly on religion and technology. Theil s entropy index was used to measure the proportion of the population in each major religious group, and the number of patents issued per 100,00 people. Organization was measured by using the number of corporations per 100,000 people, paired with the number of years the US was at war in contrast to those in which was not. Lastly, social control was measured by homicide rates per 100,00 people (1992).
Complex mathematical equations were applied. In each of the studies, at least one variable is related to change in the law in the opposite direction from Black s hypotheses. However, there were two findings that were interesting to the authors: the link between organization and law (these findings were strongly consistent with Black s), and the absence of a link between morphology and law. Organization, more specifically bureaucraticization, is the most important of the five social conditions. Conflict with external forces seems to produce less tolerance internally for social deviance of any kind during a period in which a society s members increasingly are bonding (Lessen and Sheley, 1992, p. 672). The second finding suggested that the measure was most likely the main problem.
Lessen and Sheley conclude that Black s propositions did not meet the empirical tests with which they were subjected. However, they emphasize that none of their tests necessitates abandoning the quantitative study of law that Black proposed (1992).
SYNTHESIS & CONCLUSION
Each of these articles describe Donald Black s five dimensions of social life in a unique manner. The first by Gottfredson and Hindelang used the National Crime Survey to develop, explain, as well as refute stratification, morphology, culture, organization, and social control. Their conclusions tend to show that while Black s concepts have some applicability to social groups as a whole, he left out the individual perspective. It is important to remember that groups are made up of individuals who all think, feel, and behave differently. Motivations are important as well. The second article by Cooney uses parts of Black s theory to support a theory of his own: the decline of elite homicides. The article did not explain or further Black s propositions, but utilized the conflict between the impoverished and wealthy to describe why the homicide rate is declining among the elite. The third article seemed highly technical in its method, which helped to provide empirical evidence to back up the authors oppositions to Black s theory of the behavior of law. Overall, all of the researchers seemed to believe that some of the principles introduced by Black have some validity. However, when tested, Black s theory did not hold its own.
This theory can really explain any crime be it minor or major, because it is the wealthy and powerful who decide which behaviors will be considered what is crime and who will be considered a criminal. This theory has some valid points, but it has been shown that most of them can be argued, if not shown to be the opposite of what Black proposed.
Black, D. (1989) . Sociological justice. NewYork: Oxford University Press.
Hawkins, D. (1990) . Sociological justice by Donald Black [Review of the book Sociological justice]. Social Forces, 69 (1), 316-318.
Kleck, G. (1990) . Donald Black: Sociological Justice [Review of the book Sociological justice] . Contemporary Sociology, 19 (2), 261-262.
Vold, G. B., Bernard, T. J., & Snipes, J. B. (1998) . Theoretical criminology (4th ed.) . New York: Oxford University Press.