There seems to be a growing recognition that there’s a lot more law to deal with these days than there used to be. But when you say “more law,” what does your audience think you’re talking about? Are you addressing policy makers and the sociologists who influence their thought? If so, consider this:
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 the prison term, the more pain, mutilation, humiliation, or deprivation inflicted, the more law….
And so on and so on, for another couple hundred pages, goes Donald Black’s “The Behavior of Law.” This is no minor piece of academic drivel — it is a seminal and highly influential book in the field of Sociology, hailed on its publication in 1976, required reading in our graduate course on Law and Society at U.Va. eleven years later, and with a new edition out just last year. Professor Black’s explanation of the law is now the basis of the school of Pure Sociology, which scholars use to explain pretty much any intense human interaction — ranging from the courtroom to artists and scientists, to the acts of terrorists and genocides.
It is no minor piece of drivel. It’s serious drivel. It screws up the way people think about law, making a very Babel of what should be basic, shared understanding. To the extent that sociologists affect public policy, confusion like this can only make things worse. And sociology is indeed important to law. It may or may not be a true -ology constrained by the scientific method, but pretty much all modern ideas of social improvement are deeply affected by it. Legislators may be motivated by re-election concerns, but sociological conclusions strongly inform what they see as the stance to take. Regulators are, if anything, much more influenced by sociological studies of what is or is not good for the public welfare. Sentencing commissions, juvenile justice, and diversion programs are almost entirely based on sociology.
It’s possible that we’re just nursing a grudge for having to endure a semester of it a gazillion years ago, but we doubt it. Pure Sociology isn’t itself a bad thing. It tries to explain why one criminal gets punished more severely than another for essentially the same act; why two groups of people are still fighting long after the initial conflict ended — and how third parties are likely to maneuver with respect to that conflict; why conflicts begin in the first place; why one becomes a predator while another becomes a peacemaker. Perfectly appropriate areas of human study. Furthermore, the factors that Pure Sociology takes into account are as commonsensical as they come: the strength or weakness of social ties, differences in status, the social structures within which the various actors exist, and the like. The general conclusions of Pure Sociology aren’t all that objectionable, either — that the fewer social ties between two people, the more likely government is to get involved, and the more severe its actions; that people tend to see people of high status as having gotten there through the exercise of free will, while people tend to see the most disadvantaged of us as victims of circumstances beyond their control; that the worst conflicts seem to happen between parties that, to an outside observer, appear to have more in common than otherwise.
But the core definitions are simply wrong. You do not get “more law” when someone is arrested as opposed to merely searched. You get more governmental intrusion. That is not the same thing as law. You do not get “more law” when the party bringing a case wins than when the defendant wins. You get more government authority to act against the defendant. That is not the same thing as law. In all the scenarios listed by Prof. Black, the amount of law is not changing. The things which the law permits to happen vary, not the amount of law itself. These and similar definitions are central to the school of Pure Sociology, from which all else is derived, and they are wrong.
This is not a minor quibble, harrumphing over a perfectly typical misappropriation of a word within the academic community. It is a failure to define some fundamental concepts, an understanding of which would be absolutely required before any of the higher explanations of human conflict can be attempted.
First of all, Law. Generally speaking, law is the rules by which a society lives. If life were a board game, law would be the sheet of instructions. In circumstance A, you can do either B or C, but you’re not allowed to do D unless E. But that’s not exactly accurate. There are plenty of rules by which we live that do not count as law. Politeness, morality, custom, tradition — there are tons of rules that apply to us that, though they may perhaps even be more important or powerful than law, are not law. Law is different. It’s that subset of societal rules that are imposed by an authority, fixed, only changeable by official act of that authority, applicable to everyone unless their own exceptions say otherwise, and perhaps most critically they are enforceable by that authority. The nature of the authority itself doesn’t really matter — it could be religious or political, dictatorial or democratic. Neither does the source of the law matter — it could be imposed by a supernatural being and thus unchallengable by mere humans, it could be crafted by delegated experts or judges or tyrants, it could be legislated in and out of existence by popular vote. What matters is that there is some authority, that the authority defines particular rules for everyone to follow, and that the rules are enforced by that authority.
There are different kinds of law. Some law is statutory, created by legislators or rulers with legislative authority. When most people think of laws, they’re thinking of statutes. Some law is regulatory, created not by a legislative authority but by a governmental agency or ministry. Regulations are rules for dealing with that agency or ministry, or for otherwise statutory subjects that have been delegated to the agency’s rulemakers. Regulations typically affect people such as those receiving government funds or whose actions have significant effect on the general population. A third type of law, common law, is created by judicial decisions that try to clarify what the enforceable rules actually mean, including customs that are so strong and important as to merit enforcement. Finally, constitutions are the laws of how governments are to exist and operate, and what their general authority is and is not. (Some countries’ constitutions are more akin to legislation, but that just means they’re using the word wrong.) These kinds of law exist at almost every level of society, from local community rules to international law.
The law may have more or less effect on a given society, depending on how much it adheres to the rule of law. A society that gives greater precedence to familial, tribal or commercial ties than it gives to the law is going to behave differently than one where the law is expected to apply to everyone regardless. Feuding behavior is better understood in a context of the rule of law (or more particularly, its absence) than a sociologist’s context of simultaneous social distance and closeness. Ditto for criminal consequences, civil lawsuits and commercial transactions. A “hostile takeover” has a much different meaning on Wall Street than it does in a society where one’s contracts and property rights are only enforceable to the extent you’re bigger and stronger and better-armed and better-connected than your competitors. Apart from the rule of law, different societies vary in their acknowledgement of particular human rights, property rights, and even how enforceable law is seen to be. And some laws are more of an idealized vision of how a society sees itself, than an accurate codification of what is really acceptable. So law itself is going to have different weights and values in different societies.
Governmental intrusion is another concept that’s important to understand. It’s not the same thing as law. It is when an authority interferes with a person or another authority. When the police frisk you or eavesdrop on you or arrest you or incarcerate you, that is not the creation of more law but a governmental intrusion that is either permitted by existing law or not. When the federal government takes over a state function, supersedes a local prosecution, or dictates a county’s educational policy on pain of a funding cut, that is not the creation of more law but a governmental intrusion on another government that is either permitted by existing law or not. Governmental intrusions are a critical variable in studies of human conflicts and interaction, and they must be understood for what they are. They are not law, but acts subject to the law.
Governmental enforcement is another important concept. Enforcement is a big part of what makes law Law, but it is not law. When a plaintiff wins a case, the government now empowers him to collect his compensation from the defendant, using the state’s courts and sheriffs to do so if necessary. That does not create more law, but more authority for enforcement. When two parties enter into a binding contract, as opposed to a less-binding agreement, there is not more law but instead authority for the government to enforce the agreement. When a defendant is convicted of a crime, that does not create more law but rather authority to enforce the law by imposing punishment.
Punishment is also different from law. Punishment is a severe form of governmental intrusion depriving a citizen or subject of life, liberty or property, or inflicting pain or distress, as a consequence for violating certain laws. Not just any laws, but those laws deemed so necessary for public safety and security and decency that violation requires just such extreme measures — either to dissuade that person or others from doing the same, to remove the threat from society, to otherwise make the criminal less likely to reoffend, or to satisfy a visceral desire for vengeance. Imposing more punishment does not create more law, but is instead a function of the application of existing law to individual circumstances.
It is important to understand why government intrusion, enforcement and punishment vary from circumstance to circumstance. But to do so, one must understand what they are. Lumping them together is not useful, and further lumping them in with the concept of law is epistemologically counterproductive.
Separating these and other important concepts would, however, be very useful to the practitioner of Pure Sociology. Social distance, for example, plays an enormous role in the creation of law, its applicability or exception, and its outcomes. But it plays out in different ways.
In more traditional, localized and homogenous societies, law and the rules of conflict resolution are more likely to come from custom, moral authority, or religious belief. They aren’t likely to be codified in any particular way. Kinship and personal relations are much more important in how the rules are applied, or whether they apply at all.
But as societies grow larger, more structured, more heterogenous and complex — with more interactions, kinds of conflict, and opportunities for conflict — there is a greater need for fixed general laws, explicit formal rules, and a rule of law making them applicable to everyone equally. As society becomes more complex, it creates a greater demand for law. As human interactions become more likely to involve people unconnected by kinship or loyalty, the demand grows for clear systems of conflict resolution and enforcement.
Interactions between individuals within a tribal society are going to have different variables and outcomes than those of a large post-industrial society. To accurately predict what people and institutions will do, these differences must be understood. The same goes for international relations — the citizens of a post-industrial nation are going to perceive a conflict differently than members of a more traditional society, and they are going to perceive different potential solutions, dramatically affecting what the outcome will be. To understand an internal genocide, borderless terrorism or a full-on war, one must understand how the particular peoples perceive the rules by which they must live.
It can be hard to do, of course, because people generally don’t understand their own rules very clearly. They may have a sense of what’s right and wrong, what’s done and not done, but they may not be able to explain the philosophical principles on which those conclusions are founded. Real conflict resolution requires serious drilling down to the core principles underlying the competing positions, to either find common principles on which to base a solution, or to make plain the hidden causes of the conflict and thus enable the crafting of a workable resolution. Sociologists and philosophers can do real good here.
The same goes for the crafting of criminal laws, sentencing policies and rehabilitative programs — sociologists with a real understanding of not only what is going on but why, and what solutions are most likely to get the desired result, can be a source of great justice in the world.
But only if they are careful in their study. They cannot measure the myriad normative values, formal rules, and patterns of interpersonal and governmental interaction, unless they can first name what they are measuring. If you’re lumping everything into the same bucket, you’re not going to do anyone any favors.