THE

BEHAVIOR OF LAW
SPECIAL EDITION

Donald Black
Department of Sociology
University of Virginia
Charlottesville, Virginia

United Kingdom – North America – Japan

India – Malaysia – China
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 1
INTRODUCTION

Behavior is the variable aspect of reality. Everything behaves,

living or not, whether molecules, organisms, planets, or personalities.
This applies to social life as well, to families, organizations, and cities,
to friendship, conversation, government, and revolution. Social life
behaves. It is possible to speak of the behavior of art or ideas, the
behavior of music, literature, medicine, or science.

Social life has several variable aspects, including stratification,

morphology, culture, organization, and social control. Stratification is
the vertical aspect of social life, or any uneven distribution of the
conditions of existence, such as food, access to land or water, and
money. Morphology is the horizontal aspect, or the distribution of
people in relation to each other, including their division of labor,
integration, and intimacy. Culture is the symbolic aspect, such as
religion, decoration, and folklore. Organization is the corporate as-
pect, or the capacity for collective action. Finally, social control is the

1
2 THE BEHAVIOR OF LAW

normative aspect of social life, or the definition of deviant behavior

and the response to it, such as prohibitions, accusations, punishment,
and compensation.
Every aspect of social life has many expressions, then, and all of
these vary as well, increasing and decreasing from one time and
place to another. It is possible to formulate propositions that predict
the quantity of each from one setting to another, and to explain the
behavior of each accordingly (see Braithwaite, 1953; Hempel, 1965),
Every aspect of social life may even be used as a strategy of
explanation: Stratification thus explains social life of other kinds (e.g.,
Tocqueville, 1840; Marx and Engels, 1888; Bendix and Lipset, 1953),
and the same applies to morphology (e.g., Durkheim, 1893; Parsons,
1966; Bott, 1971) and to culture (e.g., Weber, 1904–1905; Sorokin, 1937;
Merton, 1938b), organization (e.g., Michels, 1911; Swanson, 1971;
Smith, 1974), and social control (e.g., Ross, 1901; Etzioni, 1961;
Goffman, 1963). Moreover, each of these strategies is independent of
the others, and it is possible to apply all of them, at once, to the
behavior of social life of every kind. Consider, for example, the
behavior of law.

LAW

Law is governmental social control (Black, 1972:1096; see also

Radcliffe-Brown, 1933; Pound, 1939:3–9; Redfield, 1964). It is, in other
words, the normative life of a state and its citizens, such as
legislation, litigation, and adjudication. By contrast, it 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,
law is only one kind of social control. Furthermore, in this sense
many societies have been anarchic, that is, without law (see pages
123–124; compare Malinowski, 1926:15; Hoebel, 1940:45–48; 1954:
18–28; Pospisil, 1958:257–278). In this sense, in fact, much social life in
every society is anarchic.
 1. INTRODUCTION 3

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. So is the recognition of a complaint, whether
this is simply an official record, an investigation, or a preliminary
hearing of some kind. In criminal matters, an arrest is more law than
no arrest, and so is a search or an interrogation. An indictment is
more law than none, as is a prosecution, and a serious charge is more
than a minor charge. Any initiation, invocation, or application of law
increases its quantity, even when someone brings law against
himself, as in a voluntary surrender, confession, or plea of guilty.
Detention before trial is more law than release, a bail bond more
than none, and a higher bail bond more than one that is lower. A trial
or other hearing is itself an increase of law, and some outcomes are
more law than others: A decision in behalf of the plaintiff is more
law than a decision in behalf of the defendant, and conviction is more
than acquittal. The more compensation awarded, the more law.
And the same applies to the severity of punishment as defined in
each setting: the greater a fine, the longer a prison term, the more
pain, mutilation, humiliation, or deprivation inflicted, the more law.
A court order or command of any kind, by any legal official, is more
law as well. A pardon, commutation, or parole is less law, but a
revocation of parole is more. If a government provides treatment for
a deviant, such as hospitalization or rehabilitation, this is also more
law. The same applies to mediation or arbitration of a dispute. If a
decision is against the plaintiff and he appeals, this is more law, and
a reversal in his behalf is more as well. But if a defendant wins a
reversal, this is less law. More 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. As a quantitative variable, law is all of
this and more.
The quantity of law varies in time and space. It varies across the
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. It varies with who
4 THE BEHAVIOR OF LAW

complains about whom, who the legal official is, and who the other
parties are. It varies with the ranks of these people, their integration
into social life, their intimacy with each other, their conventionality,
memberships, and reputations. It varies with every aspect of its social
environment—vertical, horizontal, cultural, organizational, or nor-
mative. It varies across the world and its history, the settings of a
society or community, the cases in a court, the daily round of a
policeman. All of this is the behavior of law, and it is possible to
explain all of it.

In addition to the quantity of law in general, it is possible to

explain the style of law. This, too, is a quantitative variable. Several
styles of law may be observed, each corresponding to a style of social
control found more widely in social life. These are the penal,
compensatory, therapeutic, and conciliatory styles of social control.
Each has its own way of defining deviant behavior, and each
responds in its own way. Each has its own language and logic
(compare Gibbs, 1963; Nader, 1969:86–91).
In its pure form, penal control prohibits certain conduct, and it
enforces its prohibitions with punishment. In cases of violation, the
group as a whole takes the initiative against an alleged offender, the
question being his guilt or innocence. In compensatory control, by
contrast, the initiative is taken by a victim. He alleges that someone is
his debtor, with an unfulfilled obligation. He demands payment. Both
penal and compensatory control are accusatory styles of social
control. Both have contestants, a complainant and a defendant, a
winner and a loser. For both, it is all or nothing—punishment or
nothing, payment or nothing. By contrast, therapeutic and concilia-
tory control are remedial styles, methods of social repair and
maintenance, assistance for people in trouble (compare Goffman,
1971: Chapter 4). It is not a question of winning or losing, all or
nothing. Rather, in these styles of social control the question is what
is necessary to ameliorate a bad situation. Thus, the goal of therapy is
normality. In the pure case, the deviant himself takes the initiative in
his own behalf. He is a victim and needs help. He seeks the services
of a helper of some kind, and together they work to improve his
 1. INTRODUCTION 5

condition. Finally, in conciliation, the ideal is social harmony. In the

pure case, the parties to a dispute initiate a meeting and seek to
restore their relationship to its former condition. They may include a
mediator or other third party in their discussion, together working
out a compromise or other mutually acceptable resolution. A
summary of these four styles appears below:

FOUR STYLES OF SOCIAL CONTROL

Penal Compensatory Therapeutic Conciliatory

Standard prohibition obligation normality harmony

Problem guilt debt need conflict
Initiation
of case group victim deviant disputants
Identity
of deviant offender debtor victim disputant
Solution punishment payment help resolution

In reality, social control may deviate from these styles in their

pure form, combining one with another in various ways. For
example, a penal case may arise at the initiative of a complainant,
acting for himself, as in compensatory control. Or a therapeutic case
may have penal elements, as, for instance, when a group or a helper
takes the initiative, while the deviant protests that he is normal and
needs no help. Even with such combinations, however, most of the
elements of each style cluster together, and in most cases it is
possible to identify the dominant style. In any event, even where a
single style does not dominate a case, it is possible to identify the
elements in combination.
Like the quantity of law in general, the style of law varies across
time and space. It varies across the world and over the centuries, and
from one society or community to another. It varies across relation-
ships, from one legal setting to another, from court to court, and from
case to case. It varies with the stratification of social life, its
morphology, culture, organization, and social control. One setting
has more punishment than another, or more compensation, therapy,
6 THE BEHAVIOR OF LAW

or conciliation. One person is punished, while another must pay for

his damage; one is sent to a mental hospital, while another talks the
matter over and finds a way to make peace. One is condemned,
another incurs a debt; one is given sympathy, while for another life
goes on as before. And, just as it is possible to explain the quantity of
law in general, it is possible to explain the quantity of each of these
styles. Both are aspects of the behavior of law.

THE THEORY OF LAW

It is possible to formulate propositions that explain the quantity

and style of law in every setting. Each of these propositions states a
relationship between law and another aspect of social life—
stratification, morphology, culture, organization, or social control.
Each explains the behavior of law across time and space, in all
societies for all time, wherever it is possible to measure law and other
aspects of social life. Each explains known facts about law and
implies countless other predictions as well. Given trends in the
evolution of social life, each even forecasts the future of law.
Consider, as an example, this proposition: Law varies inversely
with other social control (see page 107). Note only its form and content,
ignoring for now the known facts that it explains and the earlier
theories that it implies (see pages 107–111).
Law itself is social control, but many other kinds of social control
also appear in social life: in families, friendships, neighborhoods,
villages, tribes, occupations, organizations, and groups of all kinds.
The proposition thus states that the quantity of law increases as the
quantity of social control of these other kinds decreases, and vice
versa. So formulated, it applies wherever and whenever it is possible
to measure the quantity of each. It applies to everything from the
evolution of social life across the world to an encounter between two
people on the street.
For instance, it predicts, all else constant, more law in societies
where other social control is comparatively weak, and this applies to
the history of a single society as well as across societies at a single
point in time. It also applies across communities and institutions
within a society. And the same proposition predicts that parties to a
 1. INTRODUCTION 7

dispute are more likely to go to law if they have no other means of

settlement. It predicts that a policeman is more likely to arrest an
offender who is subject to no other authority. It predicts that a citizen
is more likely to call the police if he has no one else to help him.
Consider only the relationship between law and social control in
the family. The proposition that law varies inversely with other
social control predicts, all else constant, more family law in societies
with comparatively weak domestic authority. It predicts more
juvenile law in societies with comparatively weak parental authority.
At the same time, it predicts that a family with less social control of
its own is more likely to call upon law to settle its affairs. It predicts
that a woman without a husband at home is more likely than other
women to call the police about her son. In turn, the police are more
likely to arrest a boy who lives with just his mother than a boy who
lives with both parents, and, later, they are less likely to release him.
If he goes to court, a judge is more likely to order a severe
sentence—or extensive treatment—for him than for a boy with more
social control at home. On the other hand, the same proposition
explains why, in general, juvenile law is less severe than adult law,
since, in general, juveniles are subject to more social control of other
kinds. In short, this one proposition has countless implications, and
all are subject to a test of the facts. But the theory of law has other
propositions as well. Other aspects of social life also predict and
explain the behavior of law.

Theory of this kind predicts and explains social life without

regard to the individual as such (compare Winch, 1958; Homans,
1964; 1967: Chapter 3). It neither assumes nor implies that he is, for
instance, rational, goal directed, pleasure seeking, or pain avoiding.
It has no concept of human nature. It has nothing to do with how an
individual experiences reality. It has nothing to say about the re-
sponsibility of an individual for his own conduct or about its causes.
Theory of this kind, then, has nothing to do with the psychology of
law (compare, e.g., Schwartz, 1954). It is not at odds with psychological
8 THE BEHAVIOR OF LAW

assumptions or theories, however, but is simply a different kind of

explanation, a different way to predict the facts.
Consider arrest. It is possible to understand an arrest as a
decision of the policeman, a psychological event. As such, it may be
explained with variables such as the policeman’s attitudes and
perceptions, his background and training, the expectations of his
supervisors and colleagues, and the actions and reactions of citizens,
including those subject to his authority. It is possible, therefore, to
have a psychological theory of arrest. But it is also possible to
understand an arrest as law, a social phenomenon. It is an increase of
law in social life, and, as such, it is understandable with the same
principles that explain other kinds of law in other settings. It is
possible, for instance, to explain arrest with the proposition that
law varies inversely with other social control (see Black, 1971:1097,
1107–1108). Hence, a proposition that pertains to legislation, litiga-
tion, and adjudication, even to the evolution of law over the
centuries, also explains why a policeman makes an arrest in one
encounter and not another. But it does not explain the behavior of
the policeman as an individual. It explains the behavior of law.
Not only does theory of this kind say nothing about the
individual as such, it also says nothing about social life that is
beyond a test of the facts. It does not assume or imply, for instance,
that everything in social life has a function, or that a social system
tends toward harmony or stability (compare, e.g., Radcliffe-Brown,
1935). It does not assume or imply that conflict or coercion or change
inheres in social life (compare, e.g., Dahrendorf, 1959:157–165; 1968b).
Thus, the proposition that law varies inversely with other social
control does not assume or imply that social life has the social control
that it needs, that law appears when other social control is ineffective
(compare Firth, 1951:73; Schwartz, 1954), or that it equilibrates social
life (compare, e.g., Parsons, 1962:59–60). And this proposition does
not assume or imply that society ultimately benefits from law or that
any particular segment of society ultimately benefits (compare, e.g.,
Chambliss and Seidman, 1971). It does not assume or imply anything
about the purpose, value, or impact of law. It says only that the
quantity of law varies with the quantity of other social control, and
how. It explains the behavior of law, and that is all.
 1. INTRODUCTION 9

DEVIANT BEHAVIOR

Deviant behavior is conduct that is subject to social control (see

Lemert, 1948; 1951; Erikson, 1962; Becker, 1963: Chapter 1). In other
words, social control defines what is deviant. And the more social
control to which it is subject, the more deviant the conduct is. In this
sense, the seriousness of deviant behavior is defined by the quantity
of social control to which it is subject. The quantity of social control
also defines the rate of deviant behavior (see Kitsuse and Cicourel,
1963; Black, 1970). The style of social control even defines the style of
deviant behavior—whether it is an offense to be punished, a debt to
be paid, a condition in need of treatment, or a dispute in need of
resolution. In short, deviant behavior is an aspect of social control.
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.
Each predicts who is subject to law, but each has a different
explanation. The theory of law explains illegal behavior with the
same principles that explain law itself. The theory of illegal behavior,
however, explains these facts with the principles that motivate an
individual to violate the law, to become, for instance, a criminal or a
juvenile delinquent. For example, one theory explains this motivation
with deprivation, such as poverty or a lack of opportunity (e.g.,
Cloward and Ohlin, 1960); another with marginality, such as a lack of
family or friends (e.g., Hirschi, 1969); another with participation in a
subculture (e.g., Miller, 1958); and still another with the conse-
quences of labeling a deviant as such (e.g., Lemert, 1967). Whatever
the details may be, each explains illegal behavior with the motivation
of the individual.
The theory of law predicts the same facts, but as an aspect of
the behavior of law, not of the motivation of the individual. For
example, the proposition that law varies inversely with other social
control predicts crime and other illegal behavior at the same time as
it predicts the quantity of law. It predicts the definition of crime; it
predicts the crime rate itself. According to this proposition, for
instance, an individual without social control at home is more likely
to become a criminal—since crime is defined by law and law
10 THE BEHAVIOR OF LAW

increases as other social control decreases. Thus, it implies that a

child from a broken home is more likely to become a juvenile
delinquent, since the conduct of such a child is more likely to be
defined as delinquent (see page 7). The theory of juvenile
delinquency predicts the same facts, but for different reasons (e.g.,
Thrasher, 1927:65, 339–342; Reiss, 1951; see also Cicourel, 1968:
Chapter 2). Like the theory of law, moreover, the theory of every kind
of social control predicts deviant behavior. Deviant behavior is, by
definition, an aspect of the behavior of social control.

THE BEHAVIOR OF SOCIAL CONTROL

It is possible to formulate propositions that explain each kind of

social control. Etiquette, for instance, or witch hunting, ethics and
other social control in science, discipline in an organization, or
psychotherapy—each of these varies in quantity and style. Each
behaves. And the aspects of social life that explain one also explain
another. Indeed, the theory of law suggests propositions that explain
other kinds of social control as well. It suggests, in other words,
aspects of the theory of social control.