black (1995) - the epistemology of pure sociology

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The Epistemology of Pure SociologyAuthor(s): Donald BlackSource: Law & Social Inquiry, Vol. 20, No. 3 (Summer, 1995), pp. 829-870Published by: on behalf of theWiley American Bar FoundationStable URL: http://www.jstor.org/stable/828807Accessed: 07-05-2015 14:36 UTC

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2/43

The

Epistemology

of

Pure

Sociology

Donald Black

Sociologists

lack

clarity

and consensusabout their

scholarly

mission.

Some are

purely

and

coldly

scientific,

some

morally

or

politically

critical,

and some

warmly

or

sentimentally

humanistic. Their

ultimateconcerns n-

clude the

True,

the

Good,

and the

Beautiful.1Others

are not

explicit

or

even self-consciousabout what

they

seek to

accomplish,

and still

others

combine various

styles-scientific,

critical,

and humanistic-and are diffi-

cult

or

impossible

o

classify

at all. Their discourse s

cacophonous.

The

utterancesof some areuninterestingo others,and their assessments f one

another

commonly

seem

completely

misdirected.

Reactions

o

my

own workare often

remarkably

rrelevant r otherwise

inappropriate

s

well.2In the

following

pages,

I

therefore

outline the

episte-

mology

of

my

work3-its

primary

mission,

the

standards

y

which it should

Donald Black

is

University

Professor f the Social Sciencesat the

University

of

Virginia.

For comments

on an

earlier

draft,

the author thanks

M.

P.

Baumgartner

nd Roberta

Senechal de la Roche.

In

addition,

he thanksRichardLeo for

organizing

symposium

n

The

SocialStructure

f

Right

nd

Wrong

San

Diego:

Academic

Press,1993)

at

the

annual

meeting

of the LawandSocietyAssociation n Phoenix,Arizona,June1994,andHowardS. Erlanger

for

editing

and

publishing

revisedversionof

the

symposium.

he

followingessay

elaborates

the author's

presentation

n

Phoenix and also

includes

portions

of a lecture entitled On

Being

Epistemologically

ncorrect,

resented

at

the

University

of

Lund,

Sweden,

October

1994,

and

portions

of a lectureentitled The

Sociology

of Lawand the Death of the

Person,

presented

at the Kobe

Conferenceon

Socio-Legal

Studies,Kobe,

Japan,

August

1995.

1.

These concerns

correspond

o three action

orientations

elineated

by

Talcott Par-

sons in The

Social

System

12-14,

327

(Glencoe,

Ill.:

Free

Press,

1951) ( Parsons,

ocial

Sys-

tem ).

For an

elaboration,

ee Donald

Black,

SocialControl as a

Dependent

Variable

orig.

pub.

1984),

in

The

Social

Structure

f

Right

nd

Wrong

9-21,

esp.

n.34

(San

Diego:

Academic

Press,

1993) ( Black,

Social

Control'; Black,

Right

nd

Wrong ).

2. See, e.g., the political abelsapplied o mywork,discussedn the section belowenti-

tled

Epistemological

hock. See

also DavidM.

Frankford,

DonaldBlack'sSocial

Structure

f

Right

nd

Wrong:

Normativity

without

Agents,

20

Law & Soc.

Inquiry

87

(1995).

3.

Epistemology

s

the

philosophy

of

knowledge,

ncluding

its nature

and evaluation.

See,

e.g.,

R.

Harre,

The

Philosophies

f

Science:An

Introductory

urvey

,

5-8

(London:

Oxford

University

Press,

1972).

1995

American

Bar

Foundation.

0897-6546/95/2003-0829$01.00

829

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3/43

830 LAWAND SOCIAL

NQUIRY

be

evaluated,

and the

paradigm

t

implies.4

n

so

doing,

I note various

char-

acteristics

of

my

work

pertinent

to

its evaluation.

Finally,

I

speculate

about

why

readers ometimes ind

my

sociology

disturbing

r even

shocking

r

crazy :uch reactionsapparently ccur not only becausepeople applyin-

appropriate

tandards o

my

writings

or do

not understand

hem,

but also

because

my

work

nevitably

violates conventional

conceptions

of

reality.

In

this

sense,

I

cannot avoid

being epistemologically

ncorrect.

WHO AM I?

I

am

a scientist.

I

study

variation n

reality.5

As

a theoreticalsociolo-

gist,

I

seek to order

variation in social

reality.6

I

employ

a

strategy

of

pure

sociology-without

psychology-that

specifies

how

social life varies with

the

shape

of

social

space.7My

book The Behavior

f

Law,8

or

example,

con-

tains

theoretical formulations

hat

predict

and

explain

the

quantity

and

style

of law in

various

ocations

and

directions n

social

space,

such as be-

tween

parties

at

various

elevations and with various

directions

n

vertical

space,

at various

distances n relational

and cultural

pace,

with various o-

cations and

directions n

corporate

and normative

space.

In

this

sense,

the

social structure f a casepredictsandexplainshow it will be handled.9The

SocialStructure

f Right

nd

Wrong

imilarly

ontains formulations

hat

pre-

dict and

explain

diverse

aspects

of

conflict

beyond

law,

such as

vengeance,

4.

A

paradigm

s a

strategy

f

explanation

hat

guides

a

branchof science. The termfirst

appeared

n

ThomasS.

Kuhn,

The Structure

f Scientific

evolutions0

(Chicago:University

of

Chicago

Press,

1962) ( Kuhn,

Scientific

Revolutions ).

5.

Science

is the

study

of

variation

n

reality.

A

variation

s

a

difference,

and

reality

s

that which is said to exist. See DonaldBlack, A Strategyof PureSociology orig.pub.

1979),

in

id.,

Right

and

Wrong

158

( Black,

Pure

Sociology' ).

Compare

Ludwig

Wittgen-

stein,

Tractatus

ogico-Philosophicus

3

(orig.

pub.

1921),

trans.

D. F.

Pears&

B. F.

McGuin-

ness

(2d

ed. London:

Routledge

&

Kegan

Paul, 1971)

( Wittgenstein,

Tractatus ).

6.

A

theory

s

an

explanation.

An

explanation

orders

a

fact with a

general

proposition.

A

fact is an observable

spect

of

reality,

and to ordera fact is to show that it

obeys

a

pattern.

As a branchof

science,

therefore,

he

missionof theoretical

ociology

s

to

orderdifferences

n

the

observable

aspect

of social

reality.

I

further eek to formulate

heory

from which it is

possible

to

deduce-and

thereby

predict-patterns

of social variation.On the nature of a

fact,

compare

Wittgenstein,

Tractatus

.

On scientific

explanation

as

logical

deduction,

see

RichardBevan

Braithwaite,

cientific xplanation:

Study

f

the

Function

f

Theory,

Probability

and Law

in

Science

orig.pub. 1953) (New

York:

Harper

&

Row, 1960);

Carl

G.

Hempel,

Aspects

of Scientific

Explanation,

n

id.,

Aspects

f Scientific

xplanation

ndOther

Essays

n

the

Philosophy

f

Science 31

(New

York:Free

Press,

1965);

George

C.

Homans,

The

Nature

of

Social

Science h. 1

(New

York:

Harcourt,

Brace

&

World, 1967).

7.

The

shape

of

social

space

and

other

concepts

in

this

section

will

be

elaborated

n

later sections. I

shall also

describe

my

strategy

as a

geometry

of social

life.

8. New

York:

Academic

Press,

1976

( Black,

Behavior

f

Law ).

9. For

further

details

on

the

social structure f

a

case,

see

Donald

Black,

Sociological

Justice

7-18

(New

York:

Oxford

University

Press,

1989)

( Black,

Sociological

ustice ).



4/43

The

Epistemology

f Pure

Sociology

831

avoidance,

negotiation,

and various

forms

of intervention

by

third

parties.

It

explores

the structural

relativity

of

morality.10

How, then,

should

my

writings

be

evaluated?

Scientifically.

Scientists

of all kinds commonly use the following criteria to evaluate theoretical for-

mulations:

(1)

testability,

(2)

generality,

(3)

simplicity,

(4)

validity,

and

(5)

originality.

In

the next

section,

I

discuss these criteria

and

apply

them

to

my

work.

HOW TO

JUDGE

MY WORK

Is It

Testable?

At

least since the

philosopher

Karl

Popper published

The

Logic

of

Scien-

tific

Discovery

in

1934,11

it has

been

widely

recognized

that a

scientific

the-

ory

should

ideally

be,

as

he

put

it,

falsifiable. '2

Although

Popper

himself

suggests

that a

theory

should

be

recognized

as scientific

only

if it is

capable

of

being

tested,13

even

those

with

a less

exclusive

conception

of science

would not

deny

the

superiority

of

testable over

untestable ideas. A

theory

is

always

more

valuable

if it

is

possible,

in

principle,

to

prove

it

wrong.

To be testable, a theory must be predictive. A prediction need not

prophesy

the future of

anything,

but

is

simply

an

empirical pattem-some-

thing

observable-logically

implied

by

the

theory.

The

predicted

pattern

might

be

something

that occurred in

the

distant

past,

such as a

pattern

of

punishment

in

ancient

Greece

or

Rome,

or it

might

be

something

that will

not

occur until

an

experiment

is

performed

in

a

laboratory.

If

such a

predic-

tion

is not

possible,

the

theory

is

not testable:

It cannot

be

proven

false.

Finally,

for

a

theory

to be

testable

it must

be stated

in

a

quantitative

lan-

guage,

so that

its

predictions

can

be

evaluated

by

measuring-counting-

something.'4 If nothing can be counted, the

theory

cannot be tested. And if

it

cannot be

tested,

its

validity

is

forever

unknowable.

10.

For

a

detailed

overviewof

Right

nd

Wrong,

ee

RobertaSenechal de

la

Roche,

Be-

yond

the Behavior

of

Law,

20 Law

& Soc.

Inquiry

77

(1995).

11.

The

English

ranslation

fromGerman)

appeared

n 1959

(New

York:Basic

Books).

12.

Karl

Popper,

The

Logic

of

ScientificDiscovery

0

(2d

ed. New

York:

Harper

&

Row,

1968)

( Popper,

ogic ).

ee

also

Murray

Gell-Mann,

The

Quark

nd he

Jaguar:

Adventures

n

the

Simple

nd

the

Complex

8-79

(New

York:W. H.

Freeman, 994)

( Gell-Mann,

Quark

nd

Jaguar ).

13. Popper,Logic40.

14.

Quantitative

measurement

eed not

entail a

determinationof

precise

differences

(interval

measurement),

ut

might

be as

simple

as a

determination

f

whether

moreor

less

of

something

occurs

ordinal

measurement),

r

merely

whether

omething

occursat

all

(nominal

measurement).

One

philosopher

emarks hat

we

cannot

speak

of a

fact -let

alone

the

validity

of a

theory-without

quantification:

The

function of

numbering

nd

measuring

s

indispensable

even in

order o

produce

he raw

material

of

'facts'

hat

are to be

reproduced

nd

unified

n

theory.

Ernst

Cassirer,

ubstance

ndFunction nd

Einstein's

heory

f

Relativity

15

(punctua-



5/43

832

LAWAND SOCIAL

NQUIRY

In

The Behavior

f

Law,

I

thus

propose

hat

law varies

directly

with

rela-

tional

distance.'5

One

implication

s that

cases

(such

as criminal

homicides)

involving

strangers

ttractmore law

(such

as more

punishment)

han

cases

involvingintimates(such as spouses, overs,or friends).And they do. We

can

readily

observe,

or

example,

hat the

probability

f

capitalpunishment

for

homicide in

modem America is far

greater

n

cases

between

strangers

than in

cases

between intimates.16

ecauseanother

pattern

s,

in

principle,

also

possible

(such

as

greater severity

in

cases

involving

intimates

than

strangers),

he

formulation

qualifies

as testable. It

could

conceivably

be

proven wrong.

My

work

as a whole contains

numerous ormulations

bout diverseas-

pectsof law and other modesof handlingconflict that arereadilytestable.

Unfortunately,

he same

can

rarely

be

said

of

theoretical

work n

the

sociol-

ogy

of law

and

related

ubjects.17

n

fact,

little

theory

exists at

all,

testable

or

not.

Testable

theory

is also rare in

sociology

more

generally.

Apart

from

Emile

Durkheim'sworkon

several

subjects,

ncluding egal

evolution,18

he

considerable

ody

of

so-calledclassical

heory

rom the

earlyyears

of sociol-

ogy

is

largely

mpossible

o

falsify.19

he

theory

of KarlMarx20

s

untestable,

tion

edited)

(orig.

pub.

1910

&

1921),

trans.William

Curtis

Swabey

& MarieCollins

Swabey

(Chicago:Open Court,1923);see alsoid. at 116.

15.

Black,

Behavior

f

Law

40-46.

Relational

distance

efers

o

the

degree

to

which

people participate

n

one

another's

ives,

measurable,

or

example,

with the

scope,

fre-

quency,

and

length

of

interaction

between

them,

the

age

of their

relationship,

and

the

natureand

numberof links

between

hem

in

a social

network.

d.

at

40-41.

In

this

formula-

tion,

law

efers o

the

quantity

of

governmental

ocial control-the

amountof

governmen-

tal

authority

applied

o a

particular

ase. This

quantity

ncreases,

or

example,

with

a

call

to

the

police,

an

arrest,

lawsuit,

a

victory

for

the

prosecution

r

plaintiff,

and

the

severity

of a

remedy.

d.

at

2-3. The

pattern

formulate s

actually

curvilinear,

with law

decreasing

t

the

smallestand

greatest

distances

n

relational

pace,

such as within

familiesor

friendships

nd

between

different

ocieties

or

tribes.Within

a

single society

such

as

modem

America,

how-

ever,

the

relationship

s

direct.

For

further

details on

myquantitative onception

of

law,

see

id.,

ANote on the Measurement f

Law

orig.

pub.

1979),

in

id.,

The

Manners ndCustoms

of

the

Police

209-17

(New

York:

Academic

Press,1980).

16.

E.g.,

Samuel

R.

Gross &

Robert

Mauro,

Patterns f Death:

An

Analysis

of

Racial

Disparities

n

Capital Sentencing

and

Homicide

Victimization,

7

Stan.

L.

Rev.

58-59

(1984).

17.

But

see,

e.g.,

Marc

Galanter,

Why

he

'Haves'

Come Out Ahead:

Speculations

on

the

Limits

of

Legal

Change,

9

Law

&

Soc'y

Rev. 95

(1974);

M. P.

Baumgartner,

Social

Control

from

Below,

n

Donald

Black,ed.,

Toward General

Theory

f

Social

Control,

vol. 1:

Fundamentals

31-39

(Orlando,

Fla.:

Academic

Press,1984)

( Baumgarmer,

Social

Control

from

Below'

);

John

Griffiths,

The

Division of

Labor

n

Social

Control,

d. at

37

( Grif-

fiths,

'Division of

Labor n

Social

Control'

).

18. EmileDurkheim,The Divisionof Laborn Society orig.pub. 1893), trans.George

Simpson

(New

York:

Free

Press,1964)

( Durkheim,

Division

f

Labor ).

19.

Classical

heory

may

even

be

classical-unchanged

and

unchallenged-largely

be-

cause it is

untestable.To

be

untestable,

however,

s not

necessarily

o be

unimportant.

The

theories of

Charles Darwin

and

Sigmund

Freud

are

commonly regarded

as

untestable,

for

example,

but

few

would

question

heir

importance.

And

scientistsdo not

necessarily

iscarda

theory

simply

because ts

testability

s not

immediately

bvious.

n

physics,

or

instance,

many

recognize

he

potential

importance

of a

new

conception

of

elementary

particles

known

as

superstring heory.

In

this

conception

(developed by

John

Schwarzand

Michael

Green,



6/43

The

Epistemology

f Pure

Sociology

833

for

example,

and so is most

of Max Weber's21

nd

Georg

Simmel's.22 he

same

applies

o the workof

later

theoristssuch as

Talcott

Parsons,23

iklas

Luhmann,24

Jiirgen

Habermas,25

Michel

Foucault,26

Pierre

Bourdieu,27

Anthony Giddens,28 eterBerger,29nd ErvingGoffman.30 ll these theo-

rists

mainly

offer

conceptions,

classifications,

and

interpretations

rather

than

testable

formulations.

Sociological

theory,

old or

new,

contains

few

ideas

capable

of

being wrong.

Is

It

General?

Scientists also

judge

theoryby

the

empirical

diversity

t

addresses-its

generality.

The

greater

he

diversity,

he betterthe

theory:

Science craves

generality.31

he

greatestglory

is

enjoyed

by

theoretical scientists

whose

among

others),

the behaviorof

particles

s

regarded

as the vibration of

strings

extending

throughout

he

universe.

Virtually

ll

physicists gree

hat

superstring

heory,

f

workable,

will

be

revolutionary,

et

no

one can

yet

specify

how

the

theorymight

be tested or even

whether

it

will

ever

yield

testable

mplications

t all.

See,

e.g.,

Sheldon

L.

Glashow

(with

Ben

Bova),

Interactions:

Journey

hrough

he

Mind

of

a Particle

Physicist

nd the Matter

of

This World

330-35

(New

York:

Warner

Books,

1988) ( Glashow,

nteractions );

ohn

Schwarz,

quoted

n

P.

C. W.

Davies &

Julian

Brown,eds.,

Superstrings: Theory

f

Everything?

4

(Cambridge:

CambridgeUniversityPress,1988).

20.

E.g.,

Karl

Marx&

Friedrich

Engels,

Basic

Writings

n

Politics

nd

Philosophy,

d. Lewis

S.

Feuer

(Garden

City,

N.Y.:

Anchor

Books,

1959) ( Marx

&

Engels,

Basic

Writings ).

21.

E.g.,

Max

Weber,

The

Theory

f

Socialand Economic

Organization

orig. pub.

1922),

trans.A.

M.

Henderson&

Talcott Parsons

New

York:

Free

Press,1947)

( Weber,

Theory

f

Social

and Economic

Organization ).

22.

E.g.,

Georg

Simmel,

The

Sociology

f

Georg

Simmel

orig.

pub.

1908),

trans.

Kurt

H.

Wolff

(New

York:Free

Press,

1950) ( Simmel,

Sociology ).

23.

E.g.,

Parsons,

Social

System

cited

in

note

1).

24.

E.g.,

Niklas

Luhmann,

A

Sociological

heory

f

Law

(orig.

pub.

1972),

trans.

Elizabeth

King

& Martin

Albrow

(London:

Routledge

&

Kegan

Paul, 1985) ( Luhmann,

Theory

of

Law ).

25.

E.g.,

Jirgen

Habermas,

egitimation

risis

orig.pub.

1973),

trans.Thomas

McCarthy

(Boston:

Beacon

Press,

1975).

26.

E.g.,

Michel

Foucault,

Discipline

nd

Punish:

The

Birth

f

the

Prison

orig.

pub.

1975),

trans.Alan

Sheridan

New

York:

Pantheon

Books,

1977).

27.

E.g.,

Pierre

Bourdieu,

Outline

f

a

Theory

f

Practice

orig.pub.

1972),

trans.

Richard

Nice

(Cambridge:

Cambridge

University

Press,

1977).

28.

E.g.,

Anthony

Giddens,

The

Constitution

f

Society:

Outline

of

a

Theory f

Structura-

tion

(Cambridge:

olity

Press,

1984)

( Giddens,

Constitution

f Society ).

29.

E.g.,

Peter

L.

Berger

&

Thomas

Luckmann,

The

Social

Construction

f Reality:

A

Treatise

n

the

Sociology f

Knowledge

orig. pub.

1966) (Garden

City,

N.Y.:

Anchor

Books,

1967)

( Berger

&

Luckmann,

ocial

Construction

f Reality );

ee

also

James

Davison Hunter

& StephenC. Ainlay, eds.,Making enseof ModernTimes:PeterL. Berger ndthe Visionof

Interpretive

ociology

London:

Routledge

&

Kegan

Paul,

1986).

30.

E.g.,

Erving

Goffman,

The

Presentation

f

Self

n

Everyday

ife

(Garden

City,

N.Y.:

Doubleday,

1959);

id.,

Behaviorn

PublicPlaces:

Notes on

theSocial

Organization

f Gatherings

(New

York:

Free

Press,

1963)

( Goffman,

Behaviorn

Public

Places ).

31. The

philosopher

Ludwig

Wittgenstein

speaks

of the

craving

or

generality

n

sci-

ence as

a

contemptuous

ttitude

toward he

particular

ase. The

Blue

Book,

n

The

Blue

and

Brown

Books

17-18

(orig.

pub.

1958)

(New

York:

Harper

&

Row,

1965).

However

appro-

priate

for

scientists

t

might

be,

he

regards

enerality

as an

inappropriate

reoccupation

or



7/43

834

LAWAND SOCIAL

INQUIRY

formulations each

previously

unattained evels

of

generality.Examples

are

Isaac

Newton,

Charles

Darwin,

and Albert

Einstein:

Newton

was the first

to formulate

heory applicable

o

the behaviorof both

celestial

and

earthly

matter(his theoryof gravitation,orexample),Darwin ormulated theory

applicable

o all

plants

and

animals

(his

theory

of

natural

selection),

and

Einstein-among

other

things-formulated

a

theoryapplicable

o the

be-

havior of both matterand

light

(his

generaltheory

of

relativity).

My theory

of

law

applies

o

all

conflicts,

civil and

criminal,

at all

stages

of the

legal

process,

n

all

societies,

n all

historical

periods,

wherever aw is

found.

It

also

applies

o

legal

variation n entire

communities

and

societies,

including

the

evolutionary mergence

of law

itself. No

comparably

eneral

theoryof law has previouslybeen attempted,and no theoryof law more

general

is

presently maginable.

Thus,

for

instance,

my

relational

distance

principle

(noted

in

the

previous

ection)

predicts

and

explains

such diverse

patterns

as the lower

ikelihood

of a call to the

police

when a crime

is

com-

mitted

between

intimates rather

than

strangers

nd,

at

subsequent tages,

the

lower

likelihood of an

arrest,

a

prosecution,

a

conviction,

and a severe

punishment.32

The same

principle

predicts

and

explains

not

only

the han-

dling

of all crimes

but

the

handling

of all

civil

cases,

such as the

lower

likelihood

of a

lawsuit for

negligence

when

an

allegedly

liable

party

is

a

friendor relativeof the injuredpartyor for breach of contractwhen an

allegedly

liable

party

has a

longstanding relationship

with the

injured

party.33

t

predicts

and

explains patterns

such as these

in all societies and

times where

litigation

occurs.

It

also

explains

why

small

bands of hunter-

gatherers,

where

everyone

s

intimatelyacquainted

with

everyone

else,

have

the least

law-virtually

none-while communitiesand societies

with the

weakeststructures

f

intimacy

(such

as

modem

America,

with its

high

de-

gree

of

social

fluidity)

have the most.

My formulations bout law mayeven be restatedto applyto a vastly

larger

universe:

he

likelihoodand

degree

of

intervention

by

third

parties

of

any

kind,

authoritative

or

partisan.34

ust

as law

varies

directly

with rela-

philosophers.

d.

See

also

Ray

Monk,

LudwigWittgenstein:

he

Dutyof

Genius

338,

449

(New

York:

Free

Press,

1990).

32.

For

pertinent

evidence,

see

respectively

Linda

S.

Williams,

The

Classic

Rape:

When

Do Victims

Report?

1 Soc. Prob.

459

(1984);

Richard

Block,

Why

Notify

the Po-

lice: The

Victim'sDecision to

Notify

the Police

of

an

Assault,

11

Criminology

55

(1974);

Donald

Black,

The Social

Organization

f

Arrest,

3

Stan. L.

Rev. 1097-98

(1971);

Vera

Instituteof

Justice,

Felony

Arrests:

Their

Prosecutionnd

Disposition

n

New York

City's

Courts

23-52 (New York:Vera Instituteof Justice,1977);LyndaLytleHolmstrom& Ann Wolbert

Burgess,

The

Victim

f Rape:

nstitutionaleactions

46-47

(orig.pub.

1978)

(New Brunswick,

N.J.:

Transaction

Books,

1983).

33.

See,

respectively,

David M.

Engel,

The Oven

Bird's

Song:

Insiders,Outsiders,

nd

Personal

njuries

n an

American

Community,

8

Law

&

Soc'y

Rev.

551

(1984);

Stewart

Macaulay,

Non-contractual elations n

Business:A

Preliminary

tudy,

28

Am.

Soc.

Rev.

55

(1963).

34.

For a

typology

of third

parties

and details

on variousamountsof

intervention,

see

Donald Black&

M. P.

Baumgartner,

Toward

Theory

of

the

Third

Party

orig.pub.

1983),



8/43

The

Epistemology

of Pure

Sociology

835

tional

distance,

or

example,

so

does

every

formof intervention:

Third-party

interventionaries

directly

with

relational istance.35he

likelihood

and

degree

of

authoritative ntervention hus

increases

along

a continuumof

relational

distance between the adversaries,rom therapyto mediation, arbitration,

and

adjudication.36

loser adversaries

re more

likely

to

seek

mediation

than

arbitrationor

adjudication,

or

instance,

and third

parties

are

more

likely

to mediatethan

arbitrate r

adjudicate

loserconflicts.

Partisan

nter-

vention

increases

along

the

same

continuum,

with

the least between

the

most intimate adversaries nd

the most

between the least intimate adversa-

ries:Closer

adversaries eek and

attract ess

partisanship-people

who

take

sides-than distant

adversaries.

marital

onflict,

for

instance,

attracts

ess

partisanshiphan, say,a conflict betweenacquaintances r strangers.Self-

conflicts-between

people

and

themselves-are the

closest conflicts of

all,

and

the least

likely

to

involve the

intervention

of

anyone.

When

they

do,

however,

the most

likely

mode

of

intervention s

therapy.37

very

dimen-

in

Black,

Right

nd

Wrong

5-124

(cited

in

note

1)

( Black

&

Baumgartner,

Theory

of

the

Third

Party'

).

See also

Black, d.,

chs.

7-8. The

authoritativeness

f

third

parties

ncludes

their

degree

of formalism

use

of

rules),

decisiveness

one-sidedness),

oerciveness

(use

of

force),

and

punitiveness

use

of

pain

and

deprivation

s a

remedy).

d. at

145-49.

The

parti-

sanship

of third

parties

refers o their

degree

of

support

or one

side

of a

conflict

against

the

other.

Black &

Baumgartner,

d. at

98.

35. As noted

earlier,

he

association

between

aw

and

relationaldistance s

curvilinear,

declining

at

both the

smallest

distances

such

as within

families)

and

the

greatest

distances

(such

as

between

societies).

The

same

applies

to

the

relationship

between law and

cultural

distance

and law

and

differentiation

functional

nterdependence).

As indicated

n

the text

above,

however,

he

interventionof third

partiesobeys

a

linear

principle.

The

most interven-

tion is

predicted

between

people

who are

the most

distant

(culturally

s

well as

relationally)

and the

most

independent,

while

the least

is

predicted

between

those who are

the closest and

most

interdependent.

See also the

formulations

ertaining

o

therapy

and

conciliation

in

Black,

Behavior

f

Law

29-30, 47-48, 78-79,

98-99.

36.

Other

degrees

of

authoritativeness

re

identifiableas

well:

A

friendlypeacemaker

does

not address

he

substanceof the

conflict,

but

merely

intervenes n a

positive

fashion,

suchasbysteppingbetweenthe partiesandmakinga joke.See Black& Baumgartner,The-

ory

of

the Third

Party,

t

108-10.

A

repressive

eacemaker

oes not

address

he

substanceof

the

conflict

either,

but instead

handles

it as an

offense

in

itself,

such as

by

punishing

both

parties.

Id.

at

116-17.

On

the

continuumof

authoritativeness,

riendlypacification

ies

be-

tween

therapy

and

mediation,

while

repressive

acification

ies

beyond

adjudication.

The for-

mer

should

hereforebe most

likely

to

occur

when the

adversaries

re

highly

intimate,

such as

close

friendsor

relatives,

while

the latter

should

be

most

likely

to

occur when

the

adversaries

are

extremely

distant,

such as

different ribes

or

societies.

Repressivepacification

may

also

occur when

the third

party

has no

information

about the

social

relationship

between the

adversaries.

The Black&

Baumgarmer

ypology

does not

place

therapy

directly

on the

continuum

of

authoritativeness,

ut

classifies t

separately

as a

mode of

interventionnot

explicitly

con-

cernedwithconflict at all. Id.at 98, 119-21;see alsoBlack, SocialControl, t 9-10, 15-16

(cited

in

note

1).

37. See

id.,

Behavior

f

Law

47;

Allan V.

Horwitz,

The

Logicof

Social

Control

81-83

(New

York:

Plenum

Press,

1990)

( Horwitz,

ocial

Control );

ut

compare

d.,

The

Social

Con-

trol

of

Mental

Illness

35-47

(New

York:

Academic

Press,

1982)

( Horwitz,

Mental

Illness ).

Self-intimacy

s

variable

and

measurable

n

the same

ashion

as

intimacy

between

people:

The

more time

people

spend

with

themselves,

for

example,

the

greater

s

their

intimacy

with

themselves.

The

greater

he

scope

of

activities

in

which

they

participate

with

themselves-

alone-the

greater

s

their

self-intimacy

s

well.

On the

measurement

f

relational

distance,



9/43

836

LAWAND

SOCIAL

NQUIRY

sion of

social

space

associatedwith the behaviorof

law

is

similarly

associ-

ated with the intervention of third

parties

of all kinds. Cultural

distance,

functional

independence,

and

inequality

between the adversariesncrease

the likelihood and degreeof both authoritativeand partisan ntervention,

for

example,

as

does

the

social

superiority

f the

complainant

over

the

al-

leged

wrongdoer.38

Various formulations n The

SocialStructure

f

Right

and

Wrong

also

predict

and

explain

the

handling

of conflict

in

all

societies,

with or without

law,

in

all

settings

of those societies. A

principle

of social

repulsion,

for

instance,

predicts

and

explains

moralistic

behavior,

ncluding

he authorita-

tiveness

of

third

parties:

Moralisms a

direct

unction f

social emoteness

nd

superiority.39his formulationmpliesthat the formalism,decisiveness,co-

erciveness,

and

punitiveness

of third

parties

ncreasewith their

relational

and cultural

distance from the

adversaries nd their

social elevation above

the

adversaries,

hile

any

degree

of

relational,cultural,

or

verticalcloseness

to the

adversaries

ncourages nformality,

ompromise,

voluntariness,

and

helpfulness.

Therapists

nd

mediators,

or

example,

normally

are closer than

arbitrators nd

judges.40

Because

closer and

more

equal

adversaries hem-

selves seek and attract ess intervention

by

third

parties

noted

above),

the

see

Black,

Behavior

f

Law

40-41.

In

modem

America,

or

instance,

people

who live

alone

are

more

likely

to

receive

psychiatric

are-a

pattern

consistent with the

positive relationship

between

therapy

and

self-intimacy.

ee,

e.g.,

Simon

Dinitz,

Mark

Lefton,

Shirley

Angrist,

&

Benjamin

Pasamanick,

Psychiatric

nd Social

Attributes

as Predictors f Case

Outcome

in

Mental

Hospitalization,

Soc.

Prob.

327

(1961);

see also

Black,

Behavior

f

Law

119-20.

In

the Western

world,moreover,

he social

structure f the

self has been

changing:

People

have

become

increasingly

ntimate with themselves.

Various orms of

psychotherapy-including

self-therapy-have

therefore

proliferated.

Compare

Horwitz,

Mental

llness h.

8;

id.,

Ther-

apyand Social Solidarity, n DonaldBlack, ed., Toward GeneralTheoryof SocialControl,

vol. 1:

Fundamentals11

(Orlando,

Fla.:Academic

Press,

1984);

Anthony

Giddens,

Modernity

and

Self-Identity:

elf

and

Society

n the

Late

Modern

Age

70-74,

185-87

(Cambridge:

olity

Press,1991)

( Giddens,

Modernity

nd

Self-Identity ).

elf-intimacy

ncreases elf-attentionof

all kinds. In

this

sense,

the self is a

quantitative

variable,

and

historically

ts

magnitude

has

grown.

Compare,

.g.,

Norbert

Elias,

The

Civilizing

rocess,

ol. 1: The

Development

f

Manners

190-91,

245-63

(orig.

pub.

1939),

trans.Edmund

ephcott

(New

York:

Urizen

Books, 1978)

( Elias,

Manners );

ionel

Trilling,

Sincerity

nd

AuthenticityCambridge:

Harvard

University

Press,1972);

Peter

L.

Berger,Brigitte

Berger,

&

Hansfried

Kellner,

The HomelessMind:Mod-

ernization

ndConsciousness

3-96

(New

York:

Vintage

Books, 1973);

Charles

Taylor,

Sources

of

the

Self:

The

Making

f

Modem

dentity

Cambridge:

Harvard

University

Press,1989);

Gid-

dens,

Modernity

nd

Self-Identity.

38.

By

inequality

nd

superiority

refer o

differences

n

various

dimensions

f

social

status,

such as

wealth,

integration,

onventionality,

and

respectability.

or an

explication

of

these and

other

pertinent

variables,

ee

generally

Black,

Behavior

f

Law

chs.

2-6.

39.

Id.,

Right

nd

Wrong

144.

40.

If

little or

no

intimacy

exists

at the

beginning

of

a

therapeutic

r

mediation

elation-

ship,

it

normally

develops

as

the

relationship

with

the

therapist

r

mediator

volves-more

so

in

the

former han

the

latter,

and

moreso in

both than in

a

relationship

with an

arbitrator r

judge.



10/43

The

Epistemology

f Pure

Sociology

837

social location of third

parties

n

relation to the adversaries aries

directly

with the social location of

the adversaries

n

relation

to each

other.41

In

addition,

a

principle

of social

gravitationpredicts

and

explains

who

takeswhose side:Partisanshipsa

joint

unction

f

thesocialcloseness ndsupe-

riorityof

one side and the

socialremoteness nd

inferiorityf

the

other.42 nti-

mate

superiors

hus attract

more

partisanship

nd distant nferiors

ess,

while

social

locations

equidistant

rom

the adversaries onstitute a neutral zone

where the

likelihood and

degree

of

any

partisanship

s low.43

Recall, too,

that

adversariesntimate with each other attract

especially

ittle

partisan-

ship

from

anyone.

Formulations uch as these

apply

at

once to all

relation-

ships

nvolving

individuals r

groups,

ncludingrelationships

etween

entire

societies.In other words,they applythroughout he social universe.This

degree

of

generality

n

testable

formulations s

unprecedented

not

only

in

the

sociology

of law and related

subjects

but

in

sociology

as a

whole.44

41.

Since the relational

distancesbetween the third

party

and the adversaries nd be-

tween the

adversarieshemselves

vary ogether,

he

authoritativeness f the intervention s

a

direct unctionof the areaof

the

triangle

ormed

by

the distances

between

he

three.

Compare

Black& Baumgartner,Theory f the ThirdParty, t 123;Black, SocialControl, t 15-16.

The

relationaldistancebetween

the adversaries

nd their

partisans

lso varies

directly

with

the relational

distance between the

adversaries: loser adversaries

end to have closer

par-

tisans than

more distant

adversaries. s noted

below,

a

greaterdegree

of

closeness to either

adversary

s

associatedwith

partisanship

tself.

42.

Id.,

Right

nd

Wrong

127.

43.

Id. at

134-35.

See also Black &

Baumgartner,

Theory

f

the Third

Party,

t 123.

44.

One

(otherwise

positive)

critic seems

o

regard

The

Behavior

f

Lawas too

general:

It

strikesme

as

sacrificing

wisdom o

elegance....

No

doubt this is a

matter

of

taste,

but

I

am

more

enlightened by

theories

less abstract han

.

.

.

Black's. R.

Stephen

Warner,

What

Should We Be

Doing?

9

Perspectives

(1986) (Newsletter

of the American

Sociological

Association'sTheoryDivision).Butthe abstraction f science inheres n its generality,andif

a

formulation

rders he

facts as well or

better than

anything

else,

it cannot be too

general.

We do

not criticize

Newton

or

Einstein or

being

too

general

or abstract.

But

a

formulation

that

overstates ts

empirical

urisdiction

the

factsto which

it

applies)

s

subject

o criticismas

an

overgeneralization.

nd

a

formulation hat

understates

ts theoretical

jurisdiction

the

theory

of which it is an

implication)

s

subject

o criticismas well-as an

undergeneralization.

An

example

of an

undergeneralization

ould be an

explanation

of

legal leniency

in

cases of

domestic

violence or

acquaintance

ape

hat focuses

entirely

on,

say,

the

gender

of the victim

(usually

emale)

or

the

particular

ociety

in

which

the

leniency

is observed

such

as

modem

America).

It

would be an

undergeneralization

ecause he

principle

hat law varies

directly

with relational

distanceorders

not

only

the same

acts as well

or

better,

but also

does so where

the victim

is male in

legal

life

everywhere.

See

my

discussionof evidence in

the

section

entitled Is It True? below.) The fields of anthropologyand history contain many

undergeneralizations.

I

must add

that science

has

nothing

to

do with

wisdom r

enlightenment -beyond

the

ordering

of

the facts.

We

thereforedo

not

criticize

Newton or

Einstein for

failing

to

provide

wisdomor

enlightenment

about

the

physical

universe.The

fundamental

meaning

of

reality-society,

culture,

ife,

the

universe,

or

nature

tself-is

unknowable

by

science.

See,

e.g.,

Leszek

Kolakowski,

The

Alienation

f

Reason:

A

History

of

Positivist

Thought

-4

(orig.

pub.

1966),

trans.

NorbertGuterman

Garden

City,

N.Y.:

Doubleday,

968);

see also MarkA.

Schneider,

Culture nd

Enchantment

Chicago:University

of

Chicago

Press,1993).



11/43

838

LAWAND

SOCIAL

NQUIRY

Is It

Simple?

It is often said that the

ultimate

purpose

of

science is to

simplify

real-

ity-to find underlyingpatternswhere realityfirstappearsmore compli-

cated

if

not

completely

incomprehensible.45

he more

concisely

such

patterns

are

formulated,

he more the

goal

of

simplicity-also

known as

parsimony-is

realized.

Science loves

simplicity

and

despisescomplexity.

PhysicistMurray

Gell-Mann

(who

predicted

he

existence

of

elemen-

tary

particles

called

quarks

nd named them

with

a word from

James

Joyce's

Finnegans

Wake)

notes that

It s not

simple

to define

'simple.'

46

He

nevertheless

measures he

simplicity

of a

description

very

simply

with its

length:The shorter t is, the greaterhe simplification.47ne formof scien-

tific

simplification

s

a

theory:

A

theory

is

formulated s a

simpleprinciple

or

set

of

principles, expressed

in a

comparatively

short

message.

... It is a

compressedpackage

of information. 48

he shorter

t

is,

then,

the more a

theoretical ormulation

implifies

eality.

For a formulation o be

simple

in

this

sense,

however,

does

not

mean

it

is

simple-minded,

uperficial,

r

obvi-

ous.

Far

rom

it. A

simple

formulation

s

appreciated

nly

when

it

achieves

as

much as

a

more

complex

ormulation.

The

astronomerNicholas

Copemi-

cus,

for

example,

theorized

hat the

earth

revolves

around

the sun

(rather

than the reverse)not becauseit ordered

existing

observationsbetter than

the

prevailing

heory

of

Claudius

Ptolemy-it

did

not-but

rather

because

it

promised

o

do

so

more

simply:

He could

plead

only

that his

conception

threw the facts of

astronomy

nto a

simpler

and more harmonious

mathe-

maticalorder. 49

ot

until 60

years

aterwas the

Coperican

theory

empiri-

cally

confirmed

as

superior

o the Ptolemaic

theory.50

The

discovery

of

previously

unknown

simplicity

is

a

revelation,

a

breakthrough

o a new level

of

understanding.

iologist

FrancisCrick

(who

co-discoveredhe molecular tructure f DNA, a keyto understanding ow

organisms

nherit

characteristics)

peaks

of the

deep

simplicity

hat

theo-

retical

science seeksbut

only occasionally

discovers,51

nd

Gell-Mann

simi-

45.

Gell-Mann,

uark

nd

Jaguar

h.

7

(cited

n note

12).

46.

Id.

at 28.

47.

Id.

at

30-34.

48.

Id.

at

77,

paraphrasing

tephen

Wolfram.

49.

EdwinArthur

urtt,

he

Metaphysical

oundations

f

Moderncience8

(italics

mit-

ted)

(orig.

pub.

1952) (rev.

ed. Garden

City,

N.Y.:

Doubleday,

954) ( Burtt,

Metaphysical

Foundations ).

50. Id.

at

51;

see

also

Stephen

F.

Mason,

A

History

f

theSciencesh.

3

&

p.

46

(orig.

pub.

1956) rev.

ed.

NewYork:

Collier

Books,

962)

Mason,

istory

f

Sciences );

homas

S.

Kuhn,

The

Copernican

evolution:

lanetary stronomy

n

the

Developmentf

Western

Thought

168-72

(Cambridge:

Harvard

University

Press, 1957) ( Kuhn,

Coperican

Revolution ).

51.

Francis

Crick,

What

MadPursuit: Personal iew

of Scientific

iscovery

(New

York:Basic

Books,

988) Crick,

Mad

Pursuit ).

e

also

expressesessimism

bout he de-

gree

o

which

biological

henomena

re

susceptible

o

simplification.

d.,

ch. 13.

Whether



12/43

The

Epistemology

f

Pure

Sociology

839

larly speaks

of the

quest

for

an

underlying

simplicity. 52

Scientists

commonly

describe

implicity

of this

kind as

elegant

r even

beautiful,

an

aesthetic

evaluation of

both

the

theoretical

formulation

tself

and

the

symmetryof nature it reveals: What is beautiful n generaland therefore

beautiful

n

science is

harmony,

order,

simplicity,

a

quality

of cleanness. 53

Here science resemblesart.54

Albert

Einstein,

probably

he most

illustriousscientist

in

history,

is

often

praised

or the

parsimony

nd

elegance

of his formulations.55 ne

bi-

ographer

hus remarks hat The

essence

of Einstein's

profundity

ay

in

his

simplicity;

and

the essence of his

science

lay

in

his

artistry-his

phenome-

nal

sense of

beauty. 56

instein's on noted

that

he hada character

more

like that of an artistthan of a scientist as we usually hink of them. 57His

evaluations

of

colleagues

were

primarily

aesthetic as well:

The

highest

praise

for a

good

piece

of work was not

that

it

was correct

nor that it was

exact but that it was beautiful. 58 is

strongest

riticism

was

ugly.

As

one

any

aspect

of

reality

can be

simplified,

owever,

s

matterof

faith,

not fact. And the

greatest

scientists

have the

most

faith.

52.

Gell-Mann,

Quark

and

Jaguar

17.

53. Howard

E.

Gruber,

Darwin'sTreeof Nature'and Other

Images

of Wide

Scope,

n

Judith

Wechsler, ed.,

On

Aesthetics

n

Science

123

(Cambridge,

Mass.:

M.I.T.

Press, 1978)

( Wechsler,Aestheticsn Science ). o return o Copericus, forexample:

As

Copernicus

himself

recognized,

he real

appeal

of sun-centered

stronomy

was aes-

thetic rather than

pragmatic.

To astronomershe

initial

choice

between

Copernicus'

system

and

Ptolemy's

ould

only

be

a matterof

taste,

and mattersof taste are the most

difficult o defineor debate.

Yet,

as the

Copemican

Revolution

tself

indicates,

matters

of taste arenot

negligible.

The ear

equipped

o

discern

geometricharmony

ould detect a

new neatness

and coherence

in

the sun-centered

stronomy

f

Copericus,

and

if

that

neatnessand

coherence

had

not been

recognized,

here

might

have been

no

Revolution.

Kuhn, Copernican

evolution

71.

But Gruber

also

suggests

hat

nature

can be

beautiful

be-

cause of the

spectacle

f

complexity

nd wildness t

presents,

and even that an erotic

strain

n

science

s

associatedwith this dimension

of nature.He

proposes

hat such a

strain

s

noticeable,

for

example,

n the workof

CharlesDarwin.Gruberat

123-24,

133-35.

54.

The

reverse

applies

as well: The

English

painter

FrancisBacon thus

sounds

ike a

theoretical cientistwhen he

suggests

hat

important

aintings

abbreviate

eality

o

achieve

a

sophisticatedimplicity.

Quoted

n

David

Sylvester,

The

Brutality f

Fact: Interviews ith

FrancisBacon

176

(orig.

pub.

1975)

(3d

enlarged

d.

New York:

Thames

&

Hudson,

1988).

Also:

Oneconstructsan artificial tructure

y

which

one

can

trap

the

reality

of the

subject-

matter. d. at 180. Some

artists

peak

of

a search or truth as well. The Italian-Swiss

culptor

Alberto

Giacometti,

or

example,

often said that what nterestedhim wasnot art but

truth,

that it was

by

means of

style

that worksof art attain

truth,

and that

truthalone was of

enduring

onsequence.

ames

Lord,

Giacometti:

Biography

9,

518;

see

also

307

(New

York:

Farrar,

traus&

Giroux,

1985).

And

the

Spanishpainter

SalvadorDali

spoke

of

his

own

work

as

a

raw and

bloody

hunk of

truth. Salvador

Dalf,

Diary

of

a Genius125

(orig.

pub.

1964),

trans.RichardHoward New York:PrenticeHall Press,1965) ( Dali,Diary ).

55.

His

general

heory

of

relativity,

or

example,provides

a model

of

gravitation

n

an

equation

of

nine

notations.See

Gell-Mann,

Quark

and

Jaguar

7-88

(cited

in

note

12).

His

theory

of the

equivalence

of

energy

and

mass is even

shorter:

E

=

mc2.

56. Banesh

Hoffmann

with

the

collaboration

f Helen

Dukas),

AlbertEinstein:

Creator

and

Rebel

(New

York:

Viking

Press,

1972).

See

also

18

&

176

( Hoffmann,

lbert

Einstein ).

57.

H. A.

Einstein,

quoted

n

G.

J.

Whitrow,ed.,

Einstein:

The

Man

and His

Achievement

19

(New

York:

Dover,

1967) ( Whitrow,

Einstein ).

58.

Id.



13/43

840

LAWAND

SOCIAL

NQUIRY

colleague

recalled,

When

I

put

down

a

suggestion

hat seemed to

me co-

gent

and

reasonable,

he

did

not

in

the least contest

this,

but

he

only

said,

'Oh,

how

ugly.'

As

soon as an

equation

seemed to

him

to be

ugly,

he

really

lost interest in it.... He was quite convinced that beauty was a guiding

principle

in

the searchfor

important

esults

n

theoretical

physics. 59

nd

he was

right.

The

simplest

and

most

aesthetically

pleasing

formulations

most

effectively

order the facts: For

reasons

nobody

seems to

understand,

the

more

elegant

and

simple

your

scheme

is,

the more success it seems to

have. The

whole

history

of

physics

over the last

two

or three hundred

years,

going

back to

Newton,

shows

that

very clearly. 60

erhaps

he

English

poet

John

Keats

understood

he

affinity

between science and art when he de-

claredthat 'Beauty s truth,truthbeauty,'-that is all ye know on earth,

and all

ye

need to know. 61

Although physical

science

often

employs

mathematics o

achieve sim-

plicity

and

elegance,

testableformulations

n

sociology

normally

appear

n

ordinary

anguage.

But

they

can still be

highly parsimonious.

Durkheim's

evolutionary

proposition

hat the ratio of

compensatory

aw to

penal

law

increasesas a direct function of the

division of

labor,62

or

example,

illus-

tratesthe considerable

egree

of theoretical

implicity

hat can be achieved

with words

alone. So do

my

own formulations.

One of

my

aspirations

n

The

Behavior

of

Law was to show

sociologists

the

high degree

of

simplicity

achievable in

falsifiable

heory

at a level of

generality

hardly

imaginable

before it

appeared.63

nd

it

may

well contain the most

falsifiable

heory

about the most

social variation

n

the

fewest words

ever

written.

Compare

the

tangled

jungles

of

verbiage

so often

produced

by

modem theoretical

sociologists

such as

Talcott

Parsons,64

Niklas

Luhmann,65

nd

Anthony

59. Hermann

Bondi,

quoted

n id.

at 82.

60. JohnSchwarz co-founder f superstringheory),quotedn Michio Kaku& Jennifer

Trainer,

Beyond

Einstein:The Cosmic

Quest

or

the

Theory f

the

Universe 95

(Toronto:

Ban-

tam

Books,

1987) ( Kaku

&

Trainer,

Beyond

Einstein ).

Another

respectedphysicist,

Her-

mann

Weyl,

once remarked

hat

he

chose

beauty

over

the

existing

evidence to

guide

his

scientificbeliefs:

My

work

always

riedto unite the truewith

the

beautiful;

ut when

I

had

to

choose one or

the

other,

I

usually

hose the beautiful.

Quoted

n S.

Chandrasekhar,

ruth nd

Beauty:

Aesthetics

ndMotivationsn Science

5

(Chicago:

University

of

Chicago

Press,1987).

And

Weyl's

nstincts

were

good.

In one

case,

for

example,

his

aesthetically

based

ormulation

was

ultimately

onfirmed fter

being ignored

y

the

physicscommunity

or

some

30

years.

Id. at 66. See

also

generally

Wechsler,

Aestheticsn

Science;

K. C.

Cole,

Sympathetic

ibrations:

Reflections

n

Physics

s

a

Wayof Life

ch. 10

(orig.

pub.

1984) (Toronto:

Bantam

Books,

1985).

61.

John

Keats,

Ode

on a

Grecian

Urn,

n

Elliott

Coleman,

ed.,

Poems

of Byron,

Keats

and

Shelley

13

(orig.

pub.

1819) (Garden

City,

N.Y.:InternationalCollectors

Library,

967).

62.

Durkheim,

Division

f

Labor

cited

in

note

18).

63. Since

my

formulations

pply

to the

handling

of all

cases,

criminaland

civil,

at all

stages

of

the

legal

process,

across

ocieties and

history

(includingevolutionary

atterns), hey

are,

for

example,

vastly

more

general

than

Durkheim's

roposition

about the evolution of

legal

remedies.

64.

E.g.,

Parsons,

Social

System

cited

in

note

1).

65.

E.g.,

Luhmann,

Theory

of

Law

(cited

in note

24).



14/43

The

Epistemology

f Pure

Sociology

841

Giddens66-leaving

side he

largely

ntestable

haracterf theirwork.

Yet

it is

sometimes aid that the

difficulty

nd even

obscurity

f

sociological

prose

ttracts

reater

ttention nd

respect

han

simplicity

nd

clarity.

f

so,

the standardsrenot scientific.

My

own

writings

re

occasionally

valuated

with a

standard

ntirely

aesthetic-as art. I

read

your

poem,

aid

one

colleague,

eferring

o The

Behavior

f

Law,

and

others

recitewhat

they

call

my

poetic

r

lyrical

writings

o their

students.Another ven

suggests

hat

most

f

the

positive

evaluation f

my

work s

aesthetic :

People

ppreciate

ts

elegance

and

simplicity,

he

awesome

cope

of its

vision,

he

graceful

ymmetry

f its ar-

guments,

nd

he

himself

eports

eing

reminded

f

great

art whenread-

ing

it.67

But

such

reactions gnore a crucialquestion:whethermy

formulationsre

right

or

wrong.

Even f

beauty

s

truth,

cientific

ruthmust

be

demonstrated

y

a

test of the

facts.

Beauty

s

not

enough.

f

my

work

s

art,

t is not art

alone:

My

poems

are

testable.68

Is

It

True?

Because o much

ociological

heory

s

untestable,

he

question

f the

degreeo which t conformso thefacts-its validity-is moot.It cannot

be

judged

s

right

or

wrong.

Yet

n

sciencea

wrong

heory

s

generally

etter

than an

untestable

heory.69

o

be

wrong

s

betterbecause t least t dem-

onstrates hat

reality

s

not-it eliminates

omething-which

s better han

demonstrating othing

at all.70A

wrong

theory

might

also

inspire

a

fruitful

reformulation.

nderstandably,

herefore,

ne of the

harshest riticisms

m-

inent

physicistWolfgang

auli

might

direct

at

a

colleague's

heory

was

hat

it was not even

wrong. 71

66.

E.g.,

Giddens,

Constitution

f

Society

cited

in

note

28).

67.

Thomas

J.

Bernard,

The Black

Hole: Sourcesof

Confusionfor

Criminologists

n

Black's

Theory

(presented

t annual

meeting

of

American

Society

of

Criminology,

Miami,

Fla.,

Nov.

1994).

68.

If

my

formulations

re

correct,however,

t

might

be said that law itself is

beautiful.

69. One

exception

wouldbe an untestable

heory

hat includesan

important

nnovation

of a

conceptual

nature-a new

way

of

looking

at

reality.

It

might

raisethe level of

generality

at which

aspects

of

reality

are

conceived,

for

example,

or it

might identify

aspects

of

reality

previously

unknown.

Talcott Parsons

hus

raisedthe level of

generality

of

sociological

dis-

course,

while

Erving

Goffman dentifiedvarious

eatures

of face-to-face

nteraction

argely

unrecognized

eforehis work.

Yet

their

writingsyield

few

testable formulations

r

implica-

tions. See, e.g., Parsons,SocialSystem;Goffman,Behaviorn PublicPlaces cited in note 30).

70. The

philosopher

FrancisBacon

ong

ago

remarkedhat

Truth

merges

more

readily

from

error

han from

confusion. Novum

Organum

orig.pub.

1620),

quoted

n

Kuhn,

Scientific

Revolutions

8

(cited

in

note

4).

71.

Wolfgang

Pauli,

quoted

n

Ed

Regis,

Who

Got

Einstein's

Office?

Eccentricity

nd

Genius

at the

Institute

or

Advanced

tudy

195

(Reading,

Mass.:

Addison

Wesley,

1987)

( Regis,

Ein-

stein's

Office ).

LudwigWittgenstein

effectively

suggests

hat

most

of

philosophy

s not even

wrong :

Mostof

the

propositions

nd

questions

o

be

found

in

philosophical

worksare not

false

but



15/43

842

LAWAND

SOCIAL

INQUIRY

We

now

know,

for

example,

hat Durkheim's

heory

of

legal

evolution

(noted above)

is

wrong,

yet

arguably

t has

contributed

more to the sociol-

ogy

of

law than

any theory

whose

validity

s

unknowable. t illustrates ow

a

sociological heoryof law canbe formulatedn a testable ashion-a contri-

bution

in

itself. And

by

testing

it we

have

learned,

for

instance,

that the

simplest

societies are

actually

ess

penal

than

more

complex

societies-the

reverse of

his

theory.72

n

fact,

I

once

regarded

Durkheim's

heory

as a

model

explanation

of

legal variation-though

I

knew

it

was

wrong.73

But

the best theories are also

right.

How,

then,

do

my

own formulationswith-

stand a test of the facts?Do

they

survive?

My

theoreticalwork s testablewith

any

and all facts that fall within its

logical space.Since the formulations pply o legalandothermodesof han-

dling

conflict

in

all

societies

and

settings,empirical

vidence from

through-

out the world and across

history

is relevant. Such evidence

is

readily

available,

and

the

weight

of this

evidence

stronglysupports

my

formula-

tions. For

example,

he

principle

hat

law

varies

directly

with

relational

dis-

tance is

testable

with

any

evidence

whatsoever hat tells

us

whether

cases

attractmore law

between

comparatively

istant

people

than between com-

paratively

ntimate

people

when

other relevant actorsare

constant,

nclud-

ing

the natureof the conflict

(an

intentional

homicide,

a

rape,

a

particular

kind of accidental njury,etc.) aswell asother featuresof the casestructure

specified

by

other formulations

n the

theory

(the

variousstatuses

of the

parties,

their

cultural

distance,

whether

they

are individuals

or

organiza-

nonsensical.

Consequently

we cannot

give any

answer o

questions

of this

kind,

but can

only

point

out that

they

are

nonsensical.

Wittgenstein,

Tractatus 7

(cited

in note

5).

72.

See,

e.g.,

Richard

D. Schwartz

&

James

C.

Miller,

Legal

Evolution

and Societal

Complexity,

0

Am.

J.

Soc.

159

(1964);

Stephen

Spitzer,

Punishment

nd Social

Organiza-

tion:

A

Study

of Durkheim's

heory

of Penal

Evolution,

Law

&

Soc'y

Rev. 613

(1975).

In

fact,

Durkheimwas

doubly

wrong:

The

simplest

ocieties are not

only

less

penal

but

also

less

compensatoryhan morecomplexsocieties.See DonaldBlack, Compensationnd the Social

Structure f Misfortune

orig.

pub.

1987),

in

id.,

Right

nd

Wrong

2 n.6

( Black,

Compensa-

tion'

).

Conflicts

n

the

simplest

ocietiesare more

commonly

handled

n a

conciliatory

tyle.

Avoidance-a curtailment f interaction

between he adversaries-is

frequent

as well.

With-

out

adequateanthropological

vidence,

Durkheim elied

primarily

n available nformation

aboutAustralian

Aborigines,

n

unusual

ase of a

simple

ociety

where

he

violation of taboos

reportedly

might

result

n

capitalpunishment.

See,

e.g.,

W.

Lloyd

Warner,

A Black

Civiliza-

tion:

A Social

Study

of

an

Australian

ribe

orig.pub.

1937) (rev.

ed. New

York:

Harper,

1958);

M.

J.

Meggitt,

Desert

People:

A

Study

of

the

Walbiri

Aborigines

f

CentralAustralia

Sydney:

Angus

&

Robertson,

1962).

73.

Another model was

anthropologist

Max

Gluckman's

roposition

hat the concilia-

tory

style

of law is more

likely

when a conflict occurs

in

a

multiplex -multi-stranded-

relationship suchas a marital elationship)han in a single-strandedelationship suchas a

relationship

hat

is

exclusively

conomic).

Max

Gluckman,

The

Judicial

rocess

mong

he Ba-

rotse

of

Northern

hodesia 9-21

(orig.pub.

1955)

(2d

ed. Manchester:Manchester

University

Press,1967).

See also

id.,

African

urisprudence,

5

Advancement

f

Science

43-44

(1962).

But

I

later

subsumedGluckman's

proposition

n

a

more

general

formulation:Remedialaw

varies

nversely

ith

relational istance

where

remedial efers o

both

conciliatory

and

thera-

peutic

styles

and relational

istance efers o variousdimensionsof

intimacy, ncluding

he

multiplexity

of a

relationship.

Black,

Behavior

f

Law

47-48.

His

proposition

s

therefore

obsolete.

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black (1995) - the epistemology of pure sociology

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