Is Killing Wrong?: A Study in Pure Sociology

2. Pure Sociology

It is possible to overstate the role of law in the modern world, but it is equally possible to understate it. Law is found in every realm of contemporary life. It penetrates, to one degree or another, virtually every corner of our social universe—our places of work and leisure, our homes and schools, our shopping malls, highways, airports, and even our wildernesses. It reaches across the entire society, claiming jurisdiction over every person, group, and corporation. no town or city remains unpoliced. Jails and prisons pepper the landscape, and courthouses command prominent city sites. on the civil side too, litigation proceeds apace, one source of a relentless barrage of legal activity. Every day, police arrest suspects, lawyers file suit, prosecutors press charges, grand juries hand down indictments, judges issue rulings, and juries decide the fate of defendants. at first glance, law presents a bewildering array of actions, far too varied and voluminous for the layperson to understand. Better leave law to the experts, then. and for much of its history, law was the exclusive domain of lawyers. But in the nineteenth century, outsiders such as karl Marx and Émile Durkheim began to take a hard look at law, arguing that it is influenced by, and influences, its social environment (Cain and Hunt 1979; Durkheim 1893). These thinkers drew attention to law’s social context, even if they did not manage to formulate a testable theory of the case. Later, a new generation of scholars began to systematically apply the newly discovered techniques of social science to the study of legal conflicts, including ethnographic observation , statistical analysis, and the testing of hypotheses. In doing so, they uncovered patterns of legal behavior that were at best only dimly perceived previously, such as the reluctance of many businessmen to sue for breach of contract (Macaulay 1963), the tendency of judges to 2 PURE SOCIOLOGY Pure Sociology 19 be stricter than jurors on defendants (kalven and Zeisel 1966), and the greater success enjoyed by repeat players over one-shot litigants in lawsuits (Galanter 1974). Important as their work was, the social scientists lacked a framework that would explain their findings. They lacked a theory. Theory is the highest form of scientific activity, and theorists are the most acclaimed scientific thinkers. a theory explains a large body of findings and predicts many others. Going beyond the known facts, a theory constellates patterns of empirical reality into a system of ideas that can be tested and refined by others. Developing new theories requires great intelligence, but intelligence is everywhere in science. More searchingly, original theory requires insight, imagination, innovation : the ability to see the world anew. Hence its rarity. Eventually, law found its theory. The year 1976 saw the publication of a remarkable book, The Behavior of Law. In a little over one hundred pages, the author, Donald Black, laid out a general sociological theory of legal conflict. The theory consists of a set of propositions that purport to explain the outcome of all legal cases, criminal and civil, in all legal systems at all times. Which victims call the police? Who gets arrested? When will grand juries indict? Under what conditions will merchants sue one another? Who wins in courts? What explains the size of damage awards? Which cases get the ultimate penalty? The Behavior of Law addresses these and a host of related questions. and it does so in a radically new way. THE BEHAVIOR OF LAW Law, for Black, is governmental social control (and social control is the definition of and response to deviant behavior). Law in this sense is a quantitative variable, known by the severity of sanctions a case attracts (as measured by how far the case progresses in the legal system). In criminal cases, an arrest is more law than no arrest, an indictment more law than a “no bill,” a conviction more law than an acquittal, and a long sentence more law than a short sentence. Similarly, in civil cases, contacting a lawyer is more law than not contacting, filing suit more law than not filing, a decision in favor of the plaintiff more law than a decision in favor of the defendant, and a large damage award more law than a small damage award. 20 Is Killing Wrong? Law also varies in style. There are four styles: penal, compensatory , therapeutic, and conciliatory. The penal style treats deviance as a crime that requires punishment; the compensatory...