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