A Study of the Behavior of Law [Michael R. Gottfredson and Michael J. Hindelang, 1979]

Donald Black
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  A Study of the Behavior of LawAuthor(s): Michael R. Gottfredson and Michael J. HindelangSource: American Sociological Review, Vol. 44, No. 1 (Feb., 1979), pp. 3-18Published by: American Sociological Association Stable URL: . Accessed: 10/10/2014 12:15 Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at  .  . JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new formsof scholarship. For more information about JSTOR, please contact  .  American Sociological Association  is collaborating with JSTOR to digitize, preserve and extend access to  American Sociological Review. This content downloaded from on Fri, 10 Oct 2014 12:15:36 PMAll use subject to JSTOR Terms and Conditions  AMERICAN SOCIOLOGICAL REVIEW A STUDY OF THE BEHAVIOR OF LAW* MICHAEL R. GOTTFREDSON MICHAEL J. HINDELANG State University of New York, Albany State University of New York, Albany American Sociological Review 1979, Vol. 44 (February):3-18 In The Behavior of Law, Black (1976) sets forth a theory of law that he argues explains variations in law across societies and among individuals within societies. Black argues that law can be conceived of as a quantitative variable, measured by the number and scope of prohibitions, obligations and other standards to which people are subject. Law varies, according to Black, with other aspects of social life, including stratification, morphology, culture, organization, and social control. Many of Black's principal propositions regarding the quantity of law are tested in this paper with National Crime Survey data on the victim's decision to report a crime to the police. An alternative model that views the quantity of law as depending largely on the gravity of the infraction against legal norms is posed and tested against Black's theory. The data are generally inconsistent with the propositions derived from The Behavior of Law and strongly suggest that a theory attempting to explain the criminal law cannot ignore the gravity of the infraction against legal norms. Introduction The Behavior of Law (Black, 1976) has been referred to as a crashing classic (Nader, n.d.) and the most important con- tribution ever made to the sociology of law- that and more (Sherman, 1978). Although Black's theory has also been criticized as circular (Michaels, 1978), it is apparent that it will be the stimulus for a great deal of research in coming years. This is so because Black's theory of law is stated in explicit propositional form and because he sees the theory as applying to so many aspects of law (e.g., both crimi- nal and civil) and at so many levels of analysis (e.g., individual level, community level, and societal level). Black defines law as governmental so- cial control (1976:2) and argues that law is a quantitative variable that varies across time and space as well as across char- acteristics of individuals: . . . the quantity of law is known by the number and scope of prohibitions, obliga- tions, and other standards o which people are subject, and by the rate of legislation, litigation, and adjudication.... Any initia- tion, invocation, or application of law in- creases its quantity. . . (1976:3) According to Black, the quantity of law varies with other aspects of social life: stratification, morphology, culture, orga- nization, and social control. In connection with each of these dimensions Black sets forth a series of propositions that he argues explain variations in law across societies and among individuals within a given society (1976:6-7).' For example, law varies directly with rank [e.g., in- come]. . . . People with less wealth have less law. They are less likely to call upon the law in dealing with one another (1976:17). In this paper we will examine many of Black's propositions, empirically test their predictions, and discuss the im- plications for the sociology of criminal law. * Address all communications to: Michael R. Gottfredson; Criminal Justice Research Center; One Alton Road; Albany, NY 12203. I Black discusses styles of law as well as quan- tity of law. The styles include penal, compensatory, therapeutic and conciliatory (Black, 1976:4-5). Be- cause of the nature of our data, we will limit our discussion to penal (criminal) law. 3 This content downloaded from on Fri, 10 Oct 2014 12:15:36 PMAll use subject to JSTOR Terms and Conditions  4 AMERICAN SOCIOLOGICAL REVIEW The task that Black (1976:7) sets for himself is to illustrate a strategy for the construction of sociological theory that .. . predicts and explains social life with- out regard to the individual as such. It neither assumes nor implies that he is, for instance, rational, goal-directed, pleasure seeking, or pain avoiding. Black is par- ticularly concerned about avoiding expla- nations that rely on individual motivation. For example, he argues repeatedly that both the theory of law and the theory of illegal behavior explain the same facts (e.g., the crime rate). The theory of illegal behavior, however, ex- plains these facts with the principles that motivate an individual o violate the law.... The theory of law predicts the same facts, but as an aspect of the behavior of law, not of the motivation of the individual. (Black, 1976:9) As a consequence of this macrotheoretical approach, Black is careful to avoid expla- nations or propositions that rely directly upon variations in the behavior of indi- viduals. He argues that the behavior of law, in all respects, can be explained by social structural variations and by the relative social structural positions of the actors (e.g., the victim and the offender), without reference to how the nature of individual behavior affects the behavior of law. One of the major difficulties facing those who would test Black's theory of law is that he is not explicit about how the objective seriousness of the offense should be handled. Contrary to the tradi- tional sociological use of the term serious- ness, as incorporating the consequences of acts to individuals, such as bodily in- jury or financial loss (see Sellin and Wolfgang, 1964), Black defines the seri- ousness of infractions by the amount of law that they evoke. Thus, Black argues that [i]f a poor man commits a crime against another poor man, for example, this is less serious than if both are wealthy. Less happens . . ., and that the more organized the victim of a crime, for instance, the more serious is the of- fense (Black, 1976:17,95). For Black (1976:9), . . . the seriousness of deviant behavior is defined by the quantity of law to which it is subject. What this implies, therefore, is that Black's entire theoretical framework is designed to account for the quantity of law without including the con- sequences of the deviance to the victim as a dimension of the theory. This is so be- cause the quantity of law is Black's de- pendent variable-a quantity that varies as a function of stratification, morphol- ogy, culture, organization, and (nonlegal) social control-and, thus, seriousness is not defined apart from the dependent variable itself. Hence, Black does not use seriousness in its traditional sense to ex- plain variations in the quantity of law. None of the formal propositions presented incorporates harm to the victim as a con- sideration, and never is variation in litiga- tion, arrest, prosecution, or sentencing accounted for by Black in terms of varia- tion in conduct. Although Black frequently uses such phrases as all else constant (e.g., Black, 1976:28,47,114) when stating a theoretical proposition, such qualifica- tions can reasonably apply only to vari- ables included in the theory. If all else constant can refer to variables not incor- porated by the theory then the theory must be rejected as untestable. If all else is limited to dimensions and prop- ositions formally specified by Black, then the consequences of legal infractions to individuals must be considered by Black to be irrelevant in accounting for the quan- tity of law. For example, in connection with his stratification propositions, Black (1976:31) notes . . . that these principles apply whatever the actual behavior of the lower ranks-whether, for example, it is more or less violent or predatory-since their conduct is more likely to be defined as illegal no matter what they do. On the basis of such statements and the context within which Black discusses his theory of law, he must be interpreted as arguing that the individual consequences of legal in- fractions, such things as injury and mone- tary loss, are not an important considera- tion in explaining the behavior of law. At a minimum, he must be interpreted as argu- ing that the individual consequences of legal infractions, such as harm to victims of crimes (seriousness of the offense in its conventional use), are less important than stratification, morphology, culture, orga- This content downloaded from on Fri, 10 Oct 2014 12:15:36 PMAll use subject to JSTOR Terms and Conditions  A STUDY OF THE BEHAVIOR OF LAW 5 nization, and social control in determining the behavior of law. An alternative to Black's theory of law, therefore, is one that explains the behavior of law as a func- tion of the individual consequences of legal infractions (such as harm to the vic- tim) rather than as a function of Black's five dimensions (and their associated propositions). Our alternative model is simply that the behavior of criminal law depends primarily on what happens be- tween the victim and the offender; the ex- tent of harm suffered is the principal de- terminant of the quantity of law. The Data Many of the propositions set forth by Black can be tested using data available from the National Crime Survey (NCS) conducted by the Bureau of the Census for the Law Enforcement Assistance Ad- ministration. Because the methods and procedures used in these victimization surveys have been discussed in detail elsewhere (U.S. Bureau of the Census, 1975; Hindelang et al., 1978), they will be described only briefly here. In these surveys, multistage cluster sampling is used to select representative samples of Americans twelve years of age or older in order to ask them about com- mon assault and theft victimizations that they may have suffered during the six months preceding the interview. In this design about 130,000 persons are inter- viewed twice per year. The data used here are for crimes reported as having occurred during 1974, 1975, or 1976. This paper is limited to personal crimes in which there was some actual contact between the vic- tim and the offender-rape, robbery, as- sault, and personal larceny (e.g., purse snatch). Because of the complex sampling design, data weighted to yield valid na- tional estimates are used here. For these years the mean weight is about 1,000.2 The victimization survey data are par- ticularly well-suited to testing many of Black's propositions because he explicitly frames much of his discussion in terms of criminal law examples, such as complaints to the police, arrests, and prosecutions. The victimization survey data not only contain the requisite information Black discusses about the victim (e.g., social rank) and the offender (e.g., number of offenders) but also contain the informa- tion necessary to assess a variety of ecological propositions set forth by Black. Furthermore, one of the principal mea- sures of the quantity of law discussed by Black (1976:3) is complaint to the police: A complaint o a legal official, for example, is more law than no complaint, whether t is a call to the police, a visit to a regulatory agency, or a lawsuit. Each is an increase in the quantity of law. For the crimes of common theft and as- sault, initiation of the criminal justice process is almost exclusively in the hands of the victim (Reiss, 1971; Hindelang and Gottfredson, 1976). Because victimization data include both crimes reported to the police and crimes not reported to the police, they permit an empirical assess- ment of many of Black's propositions re- garding initiation of the criminal law. Consequently, most of this paper will cen- ter on Black's propositions within the con- text of the victim's decision about report- ing the offense to the police. With the victimization survey data it is possible to assess propositions relating to each of Black's five major dimensions. The first of these is stratification. Stratification Black (1976: 1 1) defines stratification as the vertical aspect of social life, the uneven distribution of the material con- ditions of existence, such as food and shelter, and the means by which these are produced, such as land, raw materials, tools, domestic animals, and slaves. Ac- cording to Black, the quantity of law var- ies directly with social rank, and down- ward law (e.g., a complaint by a wealthier man against a poorer man) is more likely than upward law: In the case of a crime, for instance, a victim who is above the offender in rank is more likely to call the police than a victim whose rank is lower than the offender's .... Hold 2 The weights reflect the inverse of the probability of selection, adjusted for within-strata nonresponse, among other factors. See U.S. Bureau of the Census (1975) for details. This content downloaded from on Fri, 10 Oct 2014 12:15:36 PMAll use subject to JSTOR Terms and Conditions
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