1 For a statement of Black's position in the topography of the sociology of law, see Robert Cotterell, The Sociology of Law: An Introduction 13 (2d ed. London: Butterworths, 1992).Google Scholar

2 My repeated use of the third-person forms “we” and “us” is designed to indicate that standards for judging scholarship are intersubjective. This point is elaborated below in section 111.Google Scholar

3 Black began his Behavior of Law with the following declaration: “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.” Donald Black, The Behavior of Law 1 (New York: Academic Press, 1976) (“Black, Behavior of Law”).Google Scholar

4 See Black, Donald J., “The Boundaries of Legal Sociology,” 81 Yale L.J. 1086 (1972).CrossRefGoogle Scholar

5 Donald Black, Sociological Justice 3 (New York: Oxford University Press) (“Black, Sociological Justice”).Google Scholar

6 “A legal problem is a problem of value and is forever beyond the reach of sociology.” Black, 81 Yale L.J. at 1100; see id. at 1087.Google Scholar

7 Id. at 1093-94; see also id., Sociological Justice 3-4.Google Scholar

8 See Black, 81 Yale L.J. at 1091-96.Google Scholar

9 Id. at 1087 (emphasis omitted).Google Scholar

10 Id. at 1087.Google Scholar

11 Id. Google Scholar

12 Id. at 1091 (footnote omitted). In this passage Black suggests that legal doctrine is wholly irrelevant to the “explanation” of law. However, Black has not been consistent. See infra note 25.Google Scholar

13 For purposes of his “pure sociology,” Black defines law as governmental social control. See Black, 81 Yale L.J. at 1096. “It is, in other words, the normative life of a state and its citizens, such as legislation, litigation, and adjudication.” Black, Behavior of Law 2. Google Scholar

14 Since law for Black is governmental social control, the “scientific study of legal life thus leads naturally to other species of social control, to normative life in general, to all that expresses how people ought to behave” (at 3; footnote omitted).Google Scholar

15 “A vertical dimension of social space is present when there is an uneven distribution of wealth, or social stratification. Behavior of any kind may be described by its vertical location” (at 159). Likewise, social phenomena “may also have a vertical direction, moving downward from a higher to a lower elevation or upward from a lower to a higher elevation” (id.). The vertical direction is also variable, differentiated by such features as “the shape of a distribution of wealth, its origin, degree of segmentation, range, stability, and age” (at 160).Google Scholar

16 “The horizontal dimension of social space arises from the distribution of people in relation to each other, or social morphology” (at 160). Here the key variables are distance from “the center” and “intimacy.”“Every activity is a circle of participation, with people closer or further from the center, and accordingly every social phenomenon has a radial location. It may likewise have a radial direction, as when a marginal person complains about someone more integrated, or vice versa” (id.). Intimacy is a measure of “the degree to which [people] participate in each other's lives, including the scope of their interaction, its frequency, duration, and their linkages in a wider network”(id.).Google Scholar

17 “The symbolic dimension of social space refers to the expressive aspect of social life, or culture, whether aesthetic, intellectual, or moral” (at 160). Culture is “more or less conventional, measured by its relative frequency. Again a direction and distance might be involved from more to less conventionality or from less to more” (id.).Google Scholar

18 “The corporate dimension of social space is the capacity for collective action, or organization. The quantity of organization varies across social setting some centralized to a point of autocracy, others democratic; some dominated by groups, others by individuals on their own. And social life may have a direction from more or less organization or from less to more” (at 161).Google Scholar

19 This dimension of social space results from the “operation of social control, any process that defines and responds to deviant behavior” (at 161). Here Black differentiates the styles of social control, the degrees of authority, and the relationships to time.Google Scholar

20 Black's variables characteristic of “social space” have changed little since their introduction. See Black, Behavior of Law; id., Sociological Justice 9-18.Google Scholar

21 With regard to law Black wrote that the “pure sociology of law does not study humans in the usual sense. It studies law as a system of behavior. Taken in this sense, law feels nothing. It has no joy or sorrow or wonderment. Scientifically conceived as a social reality in its own right, law is no more human than a molecular structure. It has no nationality [rationality?], no mind, and no ends proper to its nature.” Black, 81 Yale L.J. at 1098 (footnote omitted).Google Scholar

22 Black sees himself at the forefront of the anti-metaphysical study of law: “It is, indeed, a remarkable fact that only now has the concept of law been formulated so that law itself is observable and measurable, so that it can be counted. Before that step was taken, the effort to understand law was metaphysical to some degree, detained at an earlier stage of scientific evolution.” Donald Black, “A Note on the Measurement of Law,” in The Manners and Customs of the Police 209, 210 (New York: Academic Press, 1980). He fashions himself as the founder of a new paradigm which “is spreading into universities and research centers throughout the world, even into American law schools, sanctuaries of conventionality in legal scholarship.” Black, Sociological Justice 4.Google Scholar

23 See, e.g., Oswald Hanfling, Logical Positivism 149-70 (New York: Columbia University Press, 1981).Google Scholar

24 See Black, 81 Yale L.J. at 1095 n.31 (arguing that an observer cannot empirically study a system of value statements without engaging in normative judgment).Google Scholar

25 Black's defense of his reductionism has been far from clear. At one point he seemed to indicate that from a perspective internal to law, law could be scientifically studied as a system of value statements, while from a “sociological” perspective, it could simultaneously be studied as observable behavior. See id. at 1091 n.15 (claiming that his “sociological concept of law is very different from and not logically incompatible with the legal positivism” of Kelsen and Hart); see also id. at 1100. However, as indicated in the previous footnote, in the same piece of written work Black also indicated that the study of law as a system of value statements is irreducibly a normative endeavor. Finally, in subsequent work Black indicated that his “pure sociology” can enable lawyers to be better lawyers because it affords them greater ability to predict and obtain legal outcomes than does their analysis of legal doctrine. See Black, Sociological Justice 4-8, 19-40, 89-103; see also id. at 123-24. The latter claim is that “pure sociology” can partially displace legal doctrine because the latter is partially unnecessary to “law.” In this latter work, however, Black did not tell us how legal doctrine as a “fact” fits into his “theory,” something that he must do in order to qualify his work as “theory.” He also stressed that legal doctrine is insufficient as a form of explanation that legal doctrine cannot explain legal outcomes because law does not satisfy its stated aspirations of universalism. He seems not to understand that normative statements are not subject to empirical falsification, and he also ignores normative statements regarding law's particularization of cases. See Austin Sarat, “Donald Black Discovers Legal Realism: From Pure Science to Policy Science in the Sociology of Law,” 14 Law & Soc. Inquiry 765, 781-82 (1989).Google Scholar

The more basic problem throughout Black's work is the dualism he draws between law in action, the study of which must be empirical, and law as a system of normative ideals, the study of which cannot be empirical but is instead a normative endeavor. See Black, 81 Yale L.J. at 1095 nn. 31 & 33; see also Sarat, 14 Law & SOC. Inquiry at 770. This dualism and the attendant “empirical” problem go away if we study law as a linguistic practice by which conduct is normatively justified a practice engaged in by judges, lawyers, the police, and so forth rather than as a system or process that embodies ideals.Google Scholar

26 Before proceeding, it is worth noting that even taken on its own terms as empirical work, the book has many failings. Because others have written at great length about these flaws, see Greenberg, David F., “Donald Black's Sociology of Law: A Critique,” 17 Law & Soc'y Rev. 337 (1983); Alan Hunt, “Behavioral Sociology of Law: A Critique of Donald Black,” 10 J.L. & Soc'y 19 (1983), I will simply summarize them here and thereby indicate my agreement with these previous analyses. Most importantly, Black fails to create theory, for there exists no coherent scheme in his work linking propositions and variables, just a series of ad hoc correlations. Furthermore, much of the work is not falsifiable in principle, because analytic categories overlap, concepts are not operationalized, variables are inadequately specified or are so general as to be empty, the relationships among variables are not formalized in the form of bivariate or multivariate analysis, covariance is ignored, auxiliary hypotheses multiply to avoid disconfirming evidence, and existing empirical evidence is used quite selectively. In fact, it is quite remarkable that most of the evidence that Black discusses is qualitative and hence would be viewed by empiricists like Hempel to be highly subjective. It is odd that someone who claims that quantification is the sine qua non of scientific inquiry relies on little quantitative evidence and uses no form of quantitative method.CrossRefGoogle Scholar

27 Black describes recourse to law and self-help as alternatives. As the amount of law increases, the quantity of self-help decreases, and vice versa (at 31-42).Google Scholar

28 One of Black's predictions is that “[l]ower-status people of all kinds blacks and other minorities, the poor, the homeless enjoy less legal protection, especially when they have complaints against their social superiors” (at 40).Google Scholar

29 Black predicts that informal methods of settlement are more likely the greater the degree of intimacy between the quarreling parties and settlement agents. The least formal method of dispute settlement is called “friendly pacification” (at 15-16).Google Scholar

30 Charles Taylor, Sources of the Self: The Making of the Modern Identity 30 (Cambridge: Harvard University Press, 1989) (“Taylor, Sources of the SeIj”).Google Scholar

31 Id. at 5.Google Scholar

32 Taylor analogizes the methodological tenet to ignore such mental apparitions as “mere appearances” to the 17th century's division of properties into primary and secondary qualities. The latter, like color, depend upon our perception of things, and “we know that without sighted agents like ourselves there would be nothing in the universe like what we now identify as colour …. Values, on this involuntary projection view, would be a ‘colouration’ which the neutral universe inescapably had for us.” Id. at 54; see id. at 68-69; Charles Taylor, “Self-Interpreting Animals” (“Taylor, ‘Self-Interpreting Animals”), in id., Human Agency and Language 45, 45-47 (New York: Cambridge University Press, 1985) (“Taylor, Human Agency”); Charles Taylor, “The Concept of a Person” (“Taylor, ‘Concept of a Person’”), in id., Human Agency 97, 97-112.Google Scholar

33 Charles Taylor, “Interpretation and the Sciences of Man” (“Taylor, ‘Interpretation’”), in id., Philosophy rmd the Human Sciences 15, 21 (New York: Cambridge University Press, 1985). Taylor notes that the result is often “wordy elaborations of the obvious” or failure “altogether to address the interesting questions.” Taylor, “Introduction,” in id., Human Agency 1, 1. As others have noted about Blacks other work, see Hunt, 1O J.L. B Soc'y at 20, 35, 41, banality is piled upon banality. We learn, for example: that vengeance is reciprocal (Black at 75); that when people avoid each other, they end a relationship, and violence is diminished (at 81-82); that negotiation increases discussion, but to negotiate, parties must be accessible to each other (at 84-85); that advisers give advice (at 100); that family or kin members tend to support one another, but that supporters often extend beyond those groups (at 103-4, 129, 139, 153); that healers offer support (at 121); that conflicts normally have two adversaries (at 126); and that isolated leaders may be opposed, overthrown, or assassinated (at 137).Google Scholar

34 Taylor uses the example of shame (or courage, or honor, etc.) in numerous works with which I am familiar: see his “Self-Interpreting Animals”; Sources of the Self 53-60; “Interpretation” at 23-24; “What Is Human Agency?” (“Taylor, ‘Human Agency?’”), in id., Human Agency 15,19-27; “Concept of a Person” at 100-112. This paragraph and the one that follows are woven from those works.Google Scholar

35 If you want to know if they are ashamed, you could just ask them. If they do not even understand the question, you know they are not ashamed.Google Scholar

36 In Black's language, why might we define it as normal rather than deviant?Google Scholar

37 See Taylor, “Concept of a Person” at 108-10.Google Scholar

38 Taylor, “Self-Interpreting Animals” at 62-68; id., “Interpretation” at 22-24.Google Scholar

39 Taylor, “Interpretation” at 34. The examples are legion: the act of voting would be unintelligible if one did not share a language in which we distinguish autonomy from forced choice; one could not distinguish bargaining “in good faith” from “bad faith” unless one also shared the language of contractual autonomy; our struggles to define the content of our work would be unintelligible outside of a society in which work is often analogized to a calling; and so on. See id. at 28-48. The “meanings and norms implicit in these practices are not just in the minds of the actors but are out there in the practices themselves, practices which cannot be conceived as a set of individual actions, but which are essentially modes of social relation, of mutual action.”Id. at 36.Google Scholar

40 Black's work is potentially important, and thus has a readership, because his concepts and his categories, such as those concerning stratification and social alienation, are drawn from our moral discourse. To fulfill this promise, however, Black must explore why such phenomena are relevant and morally problematic to us, a task precluded by his epistemic and methodologic premises.Google Scholar

41 Taylor's formulations of the “hermeneutical circle” are classic:Google Scholar

!!An emotion term like “shame”, for instance, essentially refers us to a certain kind of situation, the “shameful”, or “humiliating”, and a certain mode of response, that of hiding oneself, or covering up, or else “wiping out” the blot. That is, it is essential to this feeling's being identified as shame that it be related to this situation and give rise to this type of disposition. But this situation in its turn can only be identified in relation to the feelings which it provokes; and the disposition is to a goal which can similarly not be understood without reference to the feelings experienced: the “hiding” in question is one which will cover up my shame; it is not the same hiding from an armed pursuer; we can only understand what is meant by “hiding” here if we understand what kind of feeling and situation is being talked about. We have to be within the circle.Google Scholar

Id. at 23. Rather than there being a distinction between language and reality, our “language is constitutive of the reality, is essential to its being the kind of reality it is. To separate the two and distinguish them as we quite rightly distinguish the heavens from our theories about them is forever to miss the point.”Id. at 34; see Taylor, Sources of the Self 91-92 (cited in note 30); id., “Self-Interpreting Animals” at 47, 55-56, 68-75.Google Scholar

42 See Taylor, “Interpretation” at 17-21, 40-41.Google Scholar

43 Id. at 17; see Taylor, Sources of the Self 27.Google Scholar

44 See Taylor, Sources of the Self 19-36, 62-81, 91-107; id., “Self-Interpreting Animals” (cited in note 32); id., “Human Agency?” (cited in note 34); id., “Hegel's Philosophy of Mind” (Taylor, “Hegel's Philosophy of Mind”), in Human Agency 77, 88-95 (cited in note 32).Google Scholar

45 Thus, while Black's discussion of stratification and social alienation does draw on the discourse of liberalism, see supra note 40, it loses its relevance and renders itself sterile because those phenomena are totally cleaved apart from our moral discourse, which is what renders them relevant and troubling to us in the first place.Google Scholar

46 “Or to put it in another way: that of which we are trying to find the coherence is itself partly constituted by self-interpretation.” Taylor, “Interpretation” at 26 (cited in note 33). To constitute our identities, “[w]e clarify one language with another, which in turn can be further unpacked, and so on.” Taylor, Sources of the Self 34. Further, because language is necessarily a communal property, our internal clarifications help us to place ourselves among other selves, or, to use Taylor's phrase, to locate ourselves within moral space. See id. at 25-52; Taylor, “Hegel's Philosophy of Mind” at 88-95. We create narratives of self and selves, both of which are linked to a communally grasped life-form. See Taylor, Sources of the Self 35-36; id., “Hegel's Philosophy of Mind” at 88-95. Interesting work about our normative actions articulates these linkages.Google Scholar

47 See Taylor, Sources of the Self 92-98; id., “Self-Interpreting Animals” at 57-58, 73. Black seems not to understand this force, as indicated, for example, by his discussion of law, which for him is imposed from above by the state and is to be avoided, if possible, by those below (e.g., at 36-41, 121, 147). This is little more than Austin's discredited command theory. See also Hunt, 10 J.L. d Soc'y at 26 (cited in note 26).Google Scholar

48 Taylor, “Interpretation” at 54; see id., “Self-Interpreting Animals” at 63-78. Self-interpretation is not some “innate” psychological characteristic. Rather, it follows from the fact that “[w]e are language animals, we are stuck with language, as it were. … To say that man [sic] is a self-interpreting animal is not just to say that he has some compulsive tendency to form reflexive views of himself, but rather that as he is, he is always partly constituted by self-interpretation, that is, by his understanding of the imports which impinge on him.” Id. at 72.Google Scholar

49 Taylor, Sources of the Self 58 (emphasis and footnote omitted).Google Scholar

50 Id. at 58. Human science that emulates natural science puts aside our language of agency due to its metaphysical form. Thus, Taylor finds that this “naturalistic fallacy” renders such science completely “inarticulate” concerning our agency. See id. at 53-90.Google Scholar

51 Id. at 68.Google Scholar

52 Admittedly, some would find Taylor's account of agency to be highly individualistic because to some extent it hews to a well-worn philosophical path, focusing primarily on the culturally conditioned ethic of individual, linguistic, and developmental self-reflection. See Taylor, Sources of the Self 34-35, 46-52, 91-107 (cited in note 30); id., “Self-Interpreting Animals” at 62-75 (cited in note 32). A study of agency, it could be argued, should focus less on individual self-reflection and more on the language of agency that is used in social interaction. Moreover, many would claim that a study of agency should relativize our language of agency, as Foucault does, for example, see Michel Foucault, The Order of Things: An Archaeology of the Human Sciences, trans. A. M. Sheridan (New York: Random House, 1970), rather than take our discourses about “man” to be an inevitable feature of human language, as does Taylor. See Charles Taylor, “Foucault on Freedom and Truth,” in David Couzens Hoy, ed., Foucault: A Critical Reader 69 (New York: Basil Blackwell, 1986); Taylor, Sources of the Self 70-71, 99-100; id., “Human Agency?” at 29-35 (cited in note 34). For one such relativization, one might read Mary Douglas's essay, “Thought Style Exemplified: The Idea of the Self,”in Douglas, Risk and Blame: Essays in Cultural Theory 211 (New York: Routledge, 1992). In that essay, Douglas connects the banishment of the metaphysical “self” from scientific discourse with a culture obsessed with protecting individual freedom from social and political culture. In her words, “[t]o prevent the concept of freedom from being put to coercive uses,” it is “emptied of content,” as is the essential substance of a person, the self. The self is made “ineffable,” and the subject is “taboo.”Id. at 213-15. Her analysis is so interesting because she makes Black's anti-metaphysical “science” an object of study, and she connects his science, which purports to study normativity without agents, with a political culture and institutional structure in which the polis is banned from affecting the exercise of our liberty. Space limitations prevent fuller discussion here.Google Scholar

53 This paragraph has been inspired by the discussion in Hans-Georg Gadamer, Truth and Method, trans. Joel Weinsheimer & Donald G. Marshall (2d rev. ed. New York: Crossroad Publishing, 1989). Some particular page references are id. at 14, 17, 21, 26, 51-52, 70, 96-97, 102-6, 114, 119, 124-25, 132-34, 158, 295, 340, 489-90.Google Scholar

54 Id. at 133-34.Google Scholar

55 See H. L. A. Hart, The Concept of Law 79-88 (New York: Oxford University Press, 1961).Google Scholar

56 Rosemary J. Coombe, “Room for Manoeuver: Toward a Theory of Practice in Critical Legal Studies,” 14 Law & Soc. Inquiry 69, 70 (1989).Google Scholar

57 Margaret S. Archer, Culture and Agency: The Place of Culture in Social Theory ix (New York: Cambridge University Press, 1988).Google Scholar

58 See, e.g., Pierre Duhem, The Aim and Structure of Physical Theory, trans. Philip P. Wiener (New York: Atheneum, 1962); Willard V. 0. Quine, “Two Dogmas of Empiricism,”in Quine, ed., From a Logical Point of View 20 (2d ed. Cambridge: Harvard University Press, 1980); Paul Feyerabend, “Explanation, Reduction and Empiricism,” in Feyerabend, Realism, Rationalism and Scientific Method 44 (New York: Cambridge University Press, 1981).Google Scholar

59 See, e.g., Ludwik Fleck, Genesis and Development of a Scientific Fact, ed. Thaddeus J. Trenn & Robert K. Merton; trans. Fred Bradley & Thaddeus J. Trenn (Chicago: University of Chicago Press, 1979); Thomas S. Kuhn, The Snucture of Scientific Revolutions (2d ed. Chicago: University of Chicago Press, 1970).Google Scholar

60 See, e.g., David Bloor, Knowledge and Sod Imagery (2d ed. Chicago: University of Chicago Press, 1991); Bruno Latour, Science in Action (Cambridge: Harvard University Press, 1987).Google Scholar

61 In his positivist manifesto in 1972 Black declared: “I have not made and do not intend to make a philosophical defense of this tradition. I wish only to advocate a sociology of law true to basic positivist principles as they have come to be understood in the history of the philosophy of science.” Black, 81 Yale L.J. at 1096 n.34 (cited in note 4). To my knowledge, such a defense has never appeared.Google Scholar

62 In the face of this literature, Black's invocation of the mantra that his work consists of “science” fails, for very few seem to believe that science can, does, or should proceed in the manner described by the positivist creed. Similarly, his characterization that my argument sterns from “personal” value judgments and “subjective” standards of taste is incorrect. Unless the canons of science are adumbrated from on high, then our standards for judging scholarship are the ones discussed in our literature. Black surely does not want to defend the proposition that my language is a private one.Google Scholar

63 In his review of Black's work, Alan Hunt expressed criticisms similar to mine. He observed that Black fails to defend his universalism, cites works totally out of context and without a discussion of their content, and is selective in his use of empirical evidence. See Hunt, 10 J.L. & Soc'y at 24-25, 30, 35 (cited in note 26); see also Sarat, 14 Law & Soc. Inquiry at 769 n.24 (cited in note 25). At one point Hunt suggested that these problems rendered Black's work “unscholarly,” Hunt, 10 J.L. & Soc'y at 25, and he concluded overall that “time and effort should not be wasted upon either testing or controverting [Black's] hypotheses.”Id. at 35.Google Scholar