The Geometry of Law: An Interview with Donald Black

InternationalJournal of the

Sociology of Law

www.elsevier.com/locate/ijsl

International Journal of the Sociology of Law

30 (2002) 101–129

The geometry of law:An interview with Donald Black$

Accepted 2 May 2002

1. The philosophy of pure sociology

Buoro: Thank you very much for agreeing to this interview. We believe that manyin Brazil and elsewhere will be pleased to learn more about your work.

May we begin with a brief summary of your theory of law?Black: First let me note that I have always been involved in developing not merely

a theory of law, but a new kind of sociological theory. Law is simply the empiricalphenomenon on which I first focused my attention. Surely it is impossible to developscientific theory without addressing concrete variation of some kind — differences inreality that one wishes to understand. So I first focused on variation in legal reality,in particular, variation in governmental social control. But from the time of mygraduate studies, my deeper concern was always to develop a kind of sociology thatdid not yet exist: sociology without psychology. The ultimate result was what I call‘‘pure sociology.’’

From my earliest days as a student, I had been interested in the difference betweensociology and psychology. As an undergraduate at Indiana University, I was apsychology major before I became a sociology major. So naturally I expectedsociology to be fundamentally different from psychology. Then later as a doctoralstudent at the University of Michigan, my major field of specialization was called‘‘social organization’’ while my minor field was called ‘‘social psychology.’’ And thebig question for me was: What is the difference between the two? I knew thatvirtually all sociological theory was heavily psychological — concerned at leastpartly with matters in the human mind — so it seemed that sociology was really a

$Donald Black is the University Professor of the Social Sciences at the University of Virginia. His

mailing address is Department of Sociology, University of Virginia, 539 Cabell Hall, P.O. Box 400766,

Charlottesville, VA 22904-4766, USA. Tel.: +1-434-924-7551; fax: +1-434-924-7028. Interviewers:

Marcelo Gomes Justo, Helena Singer, and Andrea Bueno Buoro. The following interview was conducted

at the University of Virginia, Charlottesville, Virginia, May 21, 1999. A shorter Portuguese version

appeared in 2002: ‘‘A Geometria da Lei: Uma Entrevista com Donald Black.’’ Revista Brasileira de

Ci#encias Criminais (Brazilian Review of Criminal Sciences) 37, pp. 261–276. Roberta Senechal de la Roche

provided editorial advice. E-mail address: [email protected] (D. Black).

0194-6595/02/$ - see front matter r 2002 Published by Elsevier Science Ltd.

PII: S 0 1 9 4 - 6 5 9 5 ( 0 2 ) 0 0 0 2 1 - 7

branch of social psychology rather than a distinctive science with its own way ofunderstanding human behavior. I and others at Michigan were challenged by theidea of developing truly sociological theory — scientific theory about social life thatwould not be at all psychological. But in the end I appear to have been the only oneto devote myself wholeheartedly to this problem.

Most sociologists use a very narrow concept of psychology that excludes their ownwork. Yet in fact they constantly deal with mental states such as human feelings,perceptions, attitudes, and motivations. Their explanation of human behaviorvirtually always explicitly or implicitly refers to these mental states to some degree.So I wondered: How might we explain human behavior entirely without psychology?If it is possible to have psychology without biology, can we not have sociologywithout psychology as well? I struggled for a long time with this problem.

In my early work as a postdoctoral student at Yale Law School I concentratedspecifically on the nature of a sociological theory of law. What would such a theoryexplain? How would it do so? Strange as it may sound, the great breakthrough camewhen I realized that a sociological theory of law would not only ignore psychology,but would also ignore people as such. Instead it would address the behavior of law.The moment of that thought was one of the most memorable experiences of my life.When the phrase ‘‘the behavior of law’’ came to me I knew immediately that I hadjust discovered not only the subject matter of the sociology of law, but also in alarger sense the subject matter of sociology itself. I saw that the proper subject ofsociology is the behavior of social life rather than the behavior of people, and thatsociology would ultimately become what it had always claimed to be: a distinctivescience with its own subject matter. Sociology would finally become itself. I knew toothat this development would not come easily, that it would require a scientificrevolution most sociologists would despise and resist. The details I did not know. Ionly knew that sociology would ultimately have a new subject matter and a newmission. And I knew that I had already taken a fateful step: I had eliminated theperson (see Black, 1995, p. 870).

Because pure sociology ignores people, my subjects (such as the behavior of lawand the behavior of science) are radically different from the subjects of virtually allother sociologists. How I explain social life is also different: I do so with its social

geometry — its location and direction in social space. I thus explain the behavior oflaw with the geometry of each case. How is a conflict situated in social space? Whatis its social structure, the shape of social space where it occurs? Social space ismultidimensional, including vertical, horizontal, cultural, corporate, and normativeelements (see generally Black, 1976, 1995, pp. 851–852). We know the socialstructure of a case by looking at the social location of everyone involved in it — theadversaries as well as any and all third parties, such as witnesses, lawyers, and legalofficials.

Consider the geometry of a homicide: When someone kills a stranger, for example,the relational distance covered by the killing is greater than when someone kills afriend or relative. Every killing also has a vertical structure. If the killer is, say, anunemployed and impoverished member of the victim’s family while the victim is thefamily’s prosperous patriarch, the killing has an upward direction (from a lower to a

Interview / International Journal of the Sociology of Law 30 (2002) 101–129102

higher social elevation) while the direction of the legal case is downward (against adefendant below the victim). These relational and vertical characteristics are just twoof many elements that constitute the multidimensional structure of any case ofconflict. Moreover, the multidimensional structure of each case predicts and explainshow it will be handled — how law will behave from one case to the next. The puretheory of law provides a number of formulations that predict and explain thebehavior of law with its location and direction in social space (see Black, 1976, 1989,1998).

The theory predicts, for instance, the quantity of law — the amount ofgovernmental social control from one case to another. Criminal law increases withsuch actions as a call to the police, an arrest, a prosecution, a conviction, and eachdegree of severity in punishment. Civil law increases with such actions as theinitiation of a lawsuit, a victory for the plaintiff, and each degree of severity in theremedy. We can predict these events with formulations such as the following: Law is

a curvilinear function of relational distance (Black, 1976, pp. 40–46). This means thatthe closest and the most distant cases attract the least law. A relationally close case(in which the parties are members of the same household or otherwise wellacquainted) therefore attracts less law than a more distant case (in which the partiesare strangers or otherwise more weakly connected). The same formulation predictsthat a homicide between members of different societies — even farther apart thanstrangers in the same society — attracts less law as well.

Evidence from diverse cases and societies supports my formulation about law andrelational distance. I have developed a number of other formulations about thequantity of law and such matters as the style of law (whether penal, compensatory,conciliatory, or therapeutic), the form of settlement (whether mediation, arbitration,adjudication, or something else), the presence and nature of partisanship (thesupport each side attracts), and the breadth of liability (the allocation ofaccountability). All this theory applies to conflicts everywhere — in all societiesand times. It is a kind of general theory that many have long believed wasimpossible.

Singer: You have applied the same strategy to the sociology of knowledge. What isyour main project in this field?

Black: I have introduced a theory of the behavior of ideas — statements about thenature of reality. Just as we can describe the social structure of a legal case, so we candescribe the social structure of an idea. Whereas the social structure of a legal caseincludes the social location of the complainant, alleged offender, and any thirdparties who might participate, the social structure of an idea includes the sociallocation of the idea’s source, audience, and subject. The social structure of an ideapredicts such matters as its likelihood, content, and success.

Consider, for example, variation in the scienticity of an idea, measured by thedegree to which it is testable, general, simple, valid, and original. Here is aformulation from what I call the theory of the subject: Scienticity is a curvilinear

function of social distance from the subject (Black, 2000a, p. 352; see also 2000c,2002). This means that an idea is least likely to be scientific when its source andaudience are relationally, culturally, and functionally close to the subject, and also at

Interview / International Journal of the Sociology of Law 30 (2002) 101–129 103

the other extreme when the subject is so distant that it is invisible or nearly invisible.This formulation orders numerous facts about the history and practice of science,including the relatively unscientific nature of sociology.

The subjects of sociology are among the closest in science. Most sociologists studyonly the behavior of people in their own society — subjects like themselves. But thesubjects of the physical sciences — particles, planets, galaxies, and so on — are allvery distant from the scientists who study them, while still sufficiently visible for ahigh degree of scienticity. Note, too, that sociologists who study only humanbehavior in their own society have a closer subject than that of sociologists whostudy human behavior in other societies. The principle of scienticity predicts that thesociology of past or foreign societies will be more scientific than domestic sociology— and this is clearly true. The classical sociologists (such as Max Weber and EmileDurkheim) nearly always studied past and foreign societies, and for this reason theirwork is more scientific than most modern sociology.

But some modern sociology is too far away from its subject rather than tooclose, and — according to the principle of scienticity — too much distance from thesubject also undermines scienticity. I refer particularly to the work of sociologistswho develop no relationship with any research subject at all. Examples aretheoretical sociologists such as Talcott Parsons and Niklas Luhmann, neither ofwhom was close enough to his subject to reach a high degree of scienticity. Bothwrote about human behavior in the abstract, largely without reference to the vastresearch literature of the social sciences. Both were very general and original, butneither produced ideas that are testable or otherwise useful to researchers. Andbecause their work is untestable, it can never be described as true or false. Their workis also highly complicated rather than simple — another feature of unscientifictheory. By contrast, the field of physics is extremely scientific, especially the part ofthe field that is most famous and celebrated — its theory. Isaac Newton’s law ofgravity, for instance, is at once highly general, testable, simple, original, and valid(within the limitations later exposed by Albert Einstein’s general theory of relativity).Scientific theory such as Newton’s or Einstein’s is the most scientific science that hasever been created.

Theoretical sociologists have largely failed to create theory that satisfies thestandards of scienticity — testability, generality, and so on. My own work, however,is easily testable with concrete facts, extremely general, and very simple. It might bethe most scientific sociology ever written. The pure theory of law makes countlesssimple and readily testable predictions about legal life — including its presence orabsence — in literally all societies for all time. Although it will take many years toassess the validity of the theory in a comprehensive fashion, so far it is wellsupported by the available evidence. It is also new.

For many years I could not understand why so many sociologists are sounscientific. Why, for example, are they so ideological and so humanistic? Why dothey forever wander through swamps of human subjectivity that offer no scientificescape? Why do they not seek to develop sociological theory that meets the higheststandards of science? Why do they not even appreciate the scientific theory thatexists? I now have a sociological theory that explains why. Most sociology has an


unscientific location in social space: It is either too close or too distant from itssubject. It has the wrong geometry.

Justo: But why should sociology be scientific?Black: People argue endlessly about whether sociology should be scientific. And

because sociology is by definition the science of social life, the argument is reallyabout whether sociology should exist at all. Recall, however, that the pure theory ofscienticity predicts and explains scientifically when ideas will be scientific. In the faceof this theory, arguments about whether science is desirable seemingly lose much oftheir force. The theory tells us what will actually happen. What else do we need toknow?

Hence, I am not going to give a detailed answer to your question of why sociologyshould be scientific. I believe the value of science has been amply demonstratedduring the past several centuries. What are its competitors? Religion? Metaphysics?Folklore? Science is undoubtedly the most effective means of understanding reality.It predicts and explains more facts more precisely and is easier to evaluate than otherforms of knowledge. Yet it is still interesting that your question would arise. Whywould you ask? Why would anyone question the value of science in theunderstanding of human behavior? So I hope you do not mind if I try to explainyour question instead of answering it in more detail. The theory of scienticity is againrelevant.

A question about the desirability of science is asked only in particular locations insocial space — locations that do not attract a scientific style of discourse. Would youask your question if the subject were particles, planets, or something else studied inthe natural sciences? Surely not. The question is asked almost exclusively about thestudy of human behavior — a subject very close to humans. It is especially likely tobe asked if the human behavior of interest is located in one’s own society and time.Social closeness to the subject is not conducive to the production of science, nor is itconducive to its appreciation. It may even seem peculiar for someone to address aclose subject in a totally scientific fashion. Only subjects with the right location insocial space — neither too close nor too far away — will seem obvious and propersubjects for science. So why should I try to convince you or anyone else thatsociology should be scientific? As long as the sociological subject is something veryclose to you yourself, the theory of scienticity predicts you will have little appetite forscientific sociology. You will prefer other forms of knowledge, including commonsense (see Black, 2000a, pp. 356–357). You may even be anti-scientific. The theory ofscienticity thus suggests that arguments about the desirability of science in the studyof human behavior are largely a waste of time. The social geometry of the subjectdetermines the attractiveness of science — not arguments. Arguments are merely theverbal expression of different locations in social space. We could even say that socialstructures argue, not people as such.

On the other hand, people in social locations more distant from the subject aremore susceptible to arguments in favor of being scientific. So in this limited sensearguments can make a difference. They can introduce ideas to social locations wherethey have not previously been heard, and in some cases the new ideas will surviveand flourish. For example, because young people are less intimate with almost any


scientific subject than are experienced professionals, they are more receptive toalmost any increase in scienticity, including the newest ideas (see Black, 2000a, pp.359–360, suggested by Roberta Senechal de la Roche; see also Black, 2000a, pp. 349–350). The pure sociology of knowledge tells us not only where ideas of a particularkind (such as scientific ideas) are more likely to occur, then, but also where they aremore likely to succeed.

Pure sociology is more scientific than most sociology because it has a morescientific location. Its subjects are more distant: They are located all over the worldand across history, and they are social entities rather than people. With subjects sofar away, being scientific comes quite naturally to me, just as it does for a physiciststudying the behavior of particles or an astronomer studying the behavior ofgalaxies. It has nothing to do with who I am, how I think, or what I want. It isbecause of the social structure of my work.

Since my student days I have been interested in the sociology of knowledge and,within that field, the sociology of science. It has been one of my favorite subjects —along with the sociology of moral life, including the sociology of law and conflict. Iam also interested in the sociology of religion, art, sport, and sexuality, among othersubjects. These appeal to me because I always find it especially satisfying to bescientific about subjects that have historically eluded or resisted the jurisdiction ofscience. But being scientific with a subject previously untouched by science is a kindof illicit epistemology. It may not be appreciated. It may provoke indignation andresistance.

When I first encountered the subject of law, I saw that it had escaped sciencealmost completely. It was virgin territory. Lawyers had studied law for at least athousand years without ever formulating a major scientific idea about it. But it isunderstandable that lawyers have always been so unscientific: Law had the wronglocation in social space. It was too close, part of their own family. It was also part oftheir own government, elevated high above them — another condition inimical toscience (Black, 2000a, p. 354). I, however, had the advantage of not being a lawyer. Iwas a stranger. I studied not merely the exalted law of my own society, but thebehavior of law throughout the world and across the centuries. It was thereforeunderstandable that I had a high degree of scienticity about law — a lust fortestability, generality, simplicity, and so on. In truth, I became obsessed with beingscientific about law. I heard various protests from lawyers, but I proceeded to subjectlaw to science. And I did not stop until I had the most scientific theory of law inhistory.

Nothing is immune to science — not law, not art, not ideas, not God Himself.Lately, in fact, I have done some thinking about the behavior of God and othersupernatural beings (see Black, 1995, pp. 859–860). Some social structures attractsupernatural beings with enormous powers over everyday life, for instance, whereasothers do not. This variation is understandable with the same strategy we use topredict and explain the behavior of law: The involvement of God is a quantitativevariable that varies with His geometry. Praying to God is analogous to calling thepolice: It is an increase of God’s involvement in a particular location and direction insocial space. Like law, for example, the behavior of God depends on its vertical


direction. But unlike law, God is more active in an upward direction (toward socialsuperiors) than in a downward direction (toward social inferiors). It is possible tomake similar statements about the behavior of God along every dimension of socialspace. In popular thought God may be mysterious — beyond not only science buthuman understanding of any kind. Yet as a sociological subject His behavior ispredictable, like the behavior of anything else. I believe that the pure theory of Godis the first major step in the sociology of religion since Emile Durkheim observed thatsupernatural beings symbolically represent the social formations where they areworshipped (Durkheim, 1912).

The classical European sociology of a century ago, however, is not my model ofhow sociology should be done. Far from it. And here I differ greatly from mostsociologists. In fact, modern sociology is still overwhelmingly classical (see Black,2000a, pp. 344–345). In several respects its theoretical logic closely resembles theclassical theory of early sociologists such as Emile Durkheim, Max Weber, andGeorg Simmel.

Perhaps I should elaborate. First, like classical theory, modern sociological theoryis individualistic. Explicitly or not, it conforms to the doctrine some call‘‘methodological individualism,’’ the claim that all social life ultimately reduces tothe behavior of persons and must be explained as the behavior of persons. It is alsoheavily psychological, though not necessarily explicitly or elaborately so. Finally,like classical theory, modern sociological theory is virtually always teleological. Itexplains human behavior as a means to an end — whether the pursuit of an interest,the realization of a value, the expression of a preference, the attainment of a goal, thesatisfaction of a need, or the serving of a function (see Black, 1995, pp. 861–864). Invirtually all sociological theory the behavior of the individual or group is a consciousor unconscious means to one or more ends. Everything has a purpose. Every crime isa means to a particular end, for example, as is every instance of law, politics, religion,art, or anything else.

But teleology has a terrible shortcoming: The ends or purposes of human behaviorare unobservable. I doubt that most people (including sociologists) even know theirown ends or purposes, much less anyone else’s. Nor can we validate anything peoplemight tell us about their own motives — what they are trying to achieve — apersonal matter that may have moral significance. Most sociologists neverthelessassume or impute such ends or purposes to both individuals and groups, much asmedieval scientists once assumed or imputed ends or purposes to various elements ofthe physical universe such as the sun, the moon, and the stars. The natural scienceslargely abandoned teleology as form of metaphysics, and sociology must ultimatelydo likewise. Yet teleological sociology is alive and well, and shows no signs ofdecline. Teleology remains the superparadigm of sociology — the fundamental logicby which it explains everything.

Pure sociology is not at all teleological, however, and this may be why manysociologists cannot understand or appreciate it. Many cannot conceive of anexplanation of human behavior that does not regard every human action as a meansto an end. They seek to divine the purpose of everything human: Why, for example,do people handle legal cases as they do? What are they trying to accomplish? Why


does a police officer make a particular arrest? Why does a judge make a particulardecision? Virtually always the ‘‘why’’ refers to how each human action is a means toan end — its purpose. But such purposes lie beyond science.

Because pure sociology eliminates not only teleology but people and theirpsychology, it departs dramatically from all previous sociology. It violates thecommon sense of sociology. It cuts the heart out of sociology. Take the human outof human behavior, take out the psychology, take out the teleology — and mostsociologists are completely lost. But the elimination of these elements makes puresociology more scientifically powerful than the sociology of the past: It predicts morefacts in a simpler and more precise fashion.

Pure sociology also has many practical applications. The pure theory of law isapplicable to the practice of law and the design of legal reforms, for example (seeBlack, 1989). The pure theory of scienticity is applicable to the practice of sociologyitself. It implies how to be more effective in the development of scientific theory — apure methodology (see Black, 2000a, p. 361; 2000c, p. 708). Yet some still ask: Whybe scientific? Why would we want to predict and explain countless features of sociallife with a small number of scientific principles? Why would we want a sociology thattells us how to change the world?

I do not answer. I merely try to explain why anyone would ask.Singer: You say that teleology is metaphysical, but it seems that a universal theory

such as yours must also be metaphysical. How can a theory be applicable everywherewithout being metaphysical?

Black: The universal applicability of a scientific theory does not make itmetaphysical — beyond empirical reality. Pure sociology pertains to facts observableby anyone. It addresses variation — differences — from one social location toanother. It specifies principles according to which this variation occurs. Becausethese principles predict and explain the behavior of social life (such as law or science)from one location to another across the social universe, they are universal. But theprinciples of pure sociology are no more metaphysical than Isaac Newton’s theory ofgravitation. His theory predicts and explains the behavior of matter from onelocation to another across the physical universe. It is universal, but would you call itmetaphysical?

The pure theory of law predicts and explains the quantity and style of law with itslocation and direction in social space. It applies throughout the social universe, past,present, and future. It is also readily testable — capable of being declared wrong ifthe facts do not conform to its predictions. But facts cannot disprove a metaphysicaltheory of law, such as a theory about the essence of law or its ultimate purpose.Metaphysics is immune to facts.

Possibly, however, you wonder if the pure theory of law is metaphysical because ofits various presumptions about legal reality, such as that law is a naturalphenomenon or that law obeys the same principles of behavior throughout thesocial universe. But such ideas do not make the theory metaphysical. Every sciencecontains similar presumptions. Call them philosophical if you wish. But thephilosophy of pure sociology is merely the philosophy of conventional science — thesame as the philosophy of modern physics, biology, or any other science.


Singer: You imply that you have a conventional conception of science. What doesthis mean?

Black: The conception of science underlying pure sociology is conventional in thissense: If we were to invite a group of, say, physicists, astronomers, and biologists tosit down here with us today, all would agree that scientific theories ideally have thecharacteristics that I noted above — testability, generality, simplicity, validity, andoriginality (see Black, 1995, pp. 831–847). Pure sociology offers an understanding ofthe social universe exactly analogous to the understanding of the physical universepursued in physics or the understanding of the biological universe pursued inbiology. Pure sociology asks only to be judged by the standards of conventionalscience.

But the pure theory of law is not at all conventional from the standpoint of legalscholarship and other legal thought. It is highly unconventional merely to speak ofthe behavior of law, for example, to say that law varies with the social geometry ofeach case, or to say that law obeys the same principles in all societies and times. Evenso, I did not begin my work with an unconventional conception of law. It came to meas an exciting discovery. A revelation.

You may not know, incidentally, that the pure theory of law began in a police car.As a graduate student I studied the police in the manner of an anthropologist, ridingin their patrol cars and observing how they handled various incidents. In thebeginning I had little knowledge of how they actually behave, and all of it wasnew and interesting. My early writings on the police were largely descriptive ratherthan theoretical, and only later did I realize that their behavior obeys principlescommon to law everywhere. First, however, I had to invest a great deal of time andenergy reading about the handling of conflict in a wide range of societies and times,from bands of hunter-gatherers to tribal chiefdoms, ancient civilizations, earlykingdoms, and modern states. I have probably read more anthropology than anysociologist in the world, and I have read a lot of history as well. In the process Ilearned about the behavior of law in diverse settings, but at the same time I wasseparated from the subject by enough social distance to achieve a considerabledegree of scienticity. The result was an extremely general theory that can be testedwith facts from anywhere.

Singer: You are always comparing different cases and trying to discovergeneral laws. Would you therefore say that studying a single case is not sociologicallyuseful?

Black: A professor of mine once said that all science is comparative. And I agree.But this understanding of science does not exclude any method of research. Whetherexplicitly comparative or not, any study may prove to be valuable. One case studymay be compared to another, for instance, regardless of the intentions of the originalinvestigators. A comparative element may also be present in the study of a singlecase, such as when we examine different parts of a single community or organization,or how different people participate in a single event. A single case can even becompared to itself — over time. The entire universe is a single case, after all, yet itsstudy is an active field of science. The discovery that the galaxies are separating led tothe Big Bang theory of the origin of the universe, for example — a major


cosmological idea of the past century. All history, from the history of the universe tothe history of a person, is inherently comparative.

Ideally we should never dwell on anything in isolation. How, for example, can weunderstand a single case of violence without comparing it to another? How can weunderstand a single legal case — such as the severity of a single punishment —without comparing it to other cases? But I applaud research of all kinds,comparative or not.

2. The behavior of law

Singer: When you say ‘‘law,’’ do you refer only to an institution in modernsocieties such as the United States? What is your concept of law?

Black: What I mean by ‘‘law’’ is governmental social control. ‘‘Social control’’refers to any process that defines or responds to deviant behavior, and‘‘governmental’’ refers to anything that is part of a state. I speak of the state in abroad sense that includes chiefdoms in tribal societies and even the temporarysystems of authority that sometimes arise among hunter-gatherers during communalactivities such as warfare or large-scale hunting expeditions. For instance, the PlainsIndians of North America had so-called ‘‘buffalo police’’ who coordinated thehunting of buffalo.

Although I limited my early work primarily to law, I have always been interestedin any and all ways of handling conflict — clashes of right and wrong. By at firstnarrowing my work to law I was able to keep the subject manageable and reach adegree of depth and comprehensiveness that would have been difficult to attain if Ihad addressed other forms of social control as well. Lawyers might be surprised thatI regard law as a narrow subject, but when seen in relation to all the other wayspeople have handled conflicts throughout human history, it is apparent that law isonly a tiny part of a vastly larger universe of conflict management. In fact, law hasexisted on a full-time basis no longer than about 20,000 years, and even then only inthe small number of societies that developed states. For most of human historypeople subsisted as hunter-gatherers and had no permanent state or state-likestructures at all. So by definition they had no law (apart from temporary episodessuch as I noted above). Yet they constantly had conflicts, and they had their ownways of managing them. We can reasonably reconstruct how they handled conflictwithout law from anthropological and other descriptions of hunter-gatherers (see,e.g., Black, 2000b). For example, hunter-gatherers often use avoidance as a means ofsocial control: They simply reduce contact, possibly by splitting up and livingseparately, possibly by limiting their interaction to a lesser degree. Sometimes theyjust talk it over and work out a resolution. And sometimes they use violence. Theirsocial control varies from one social location to another — like law. I might add thatI and a number of others have done considerable research and theory on nonlegalforms of social control, including avoidance, gossip, individual and collectiveviolence, and various forms of third-party intervention such as mediation,pacification, and therapy (see, e.g., Horwitz, 1982; Baumgartner, 1988, 1993; Morrill,


1995; Senechal de la Roche, 1996, 1997, 2001; Cooney, 1998; Tucker, 1999; much ofmy own work on nonlegal social control appears in Black, 1998).

Justo: An unusual concept in your theory of law is ‘‘slow partisanship.’’ Couldyou tell us a bit about this idea?

Black: Legal scholars normally describe law as a nonpartisan process —autonomous and neutral. They say law is functioning normally and properly onlywhen it is completely impersonal and impartial. But my view is that law is inherentlypartisan. It is partisan whenever a legal official or jury decides who is right and whois wrong — who wins and who loses — in a particular dispute. If a friend of person Atakes A’s side when A has a dispute with person B, the friend is a partisan of A andan opponent of B. Judges do the same thing. If a judge says A is right and B iswrong, the judge — law itself — becomes A’s partisan against B. Is this debatable? Icannot see how. How can a judge or jury take A’s side without being A’s partisanagainst B? A nonpartisan who takes sides would be a contradiction in terms. Law isnonpartisan only until it takes sides. Moreover, when law takes sides it does so withall the force of the state — its capacity for violence. And the state is a wonderfulpartisan for the winner. Who could be more helpful? Once the state takes sides theloser’s plight is largely hopeless.

But law rarely takes sides from the beginning. A legal trial determines the state’spartisanship. Law takes sides only after the adversaries make arguments and presentevidence about their dispute. These arguments and presentations might takeminutes, hours, days, or weeks. Japan defines one extreme: Because a Japanese judgetypically hears a particular case only one day each month until it is decided, theprocess might take many months. Yet everywhere the process by which law takessides typically takes time. It is slow. So I call it ‘‘slow partisanship.’’

Perhaps I should note that when I say law is a form of partisanship I am notspeaking of the subjective experience or motivation of judges or, where they exist,juries. I am not saying judges or juries regard themselves as partisan or want to bepartisan. Quite possibly they endorse the jurisprudential idea that law isfundamentally autonomous and neutral, and quite possibly they view themselvesas autonomous and neutral. I do not know what they think — what they perceive orwhat they want. All that matters sociologically is what they actually do. And whatdo they actually do? They take sides.

The pure theory of partisanship appears in my book called The Social Structure of

Right and Wrong (Black, 1998). The theory predicts and explains who takes whoseside in conflicts, and thereby implies whose side law will take as well. The mainformulation is the following: Partisanship is a direct function of the social closeness

and superiority of one side and the social remoteness and inferiority of the other (Black,1998, p. 127). This implies, for example, that if a citizen brings a lawsuit against astate official or state agency such as the police or military — against the state itself —the judge is more likely to take the state’s side than the citizen’s. Why? Because thestate is closer and higher than the citizen. The judge is more intimate with the state (ifonly because the state is the judge’s employer), and the state is also greatly superiorin social resources to any citizen. If the state brings a case against a citizen — as incriminal matters, for instance — the theory of partisanship again predicts the judge


will side with the state (as does another principle pertaining to the advantage oforganizations over individuals — see Black, 1976, pp. 92–97; 1989, Chapter 3). Andample evidence supports these predictions: Cases brought by a citizen against thestate are less likely to succeed than cases brought by the state against a citizen (see,e.g., Wanner, 1975, p. 302). The same theory predicts that judges or jurors will takethe side of anyone to whom they are closer in any way (such as an acquaintance orfellow ethnic group member against a stranger or ethnic outsider) or anyone who issuperior to his or her adversary (such as someone who is wealthier and morerespectable than his or her adversary). Although we need more research to test thesepredictions, I would be completely shocked if they were wrong. From experimentalresearch we know, for example, that in American criminal cases white jurors favorwhites over blacks and that black jurors favor blacks over whites (Ugwuegbu, 1979).But then most people accused of a crime plead guilty anyway. They turn againstthemselves and become their own enemy.

I realize that those accustomed to conventional legal thought might have difficultyunderstanding the idea of law as a form of partisanship. Some might even find itoutrageously wrong and ignorant. Indeed, it is such a radical idea that I devoted agreat deal of thought to the subject before I was willing to say it in public or publishit. I feared that people might say I was stupid and did not understand law at all. Butthe more I thought about it and discussed it with colleagues, the more I wasconvinced that my view was perfectly sensible and correct. I was simply extendingthe concept of partisanship to a process not conventionally regarded as such. I mightadd that the partisanship of legal officials should not be surprising. It is the primaryrole of third parties who intervene in conflicts of all kinds.

The idea that law is a form of partisanship may be as disturbing as another view ofmine — that law can be criminal. The latter is disturbing because conventional legalthinkers regard law as inherently legitimate and worthy of respect. Otherwise it is notlaw at all. Illegality is the antithesis of law, and law that is criminal is seemingly acontradiction in terms. But from a sociological standpoint this conventional view oflaw is untenable. It is even worse than wrong: It is factually meaningless. It isfactually meaningless because conventional legal thinkers such as lawyers and lawprofessors confuse factual statements and value statements about law — what law is

and what it should be. For this reason it is difficult to know whether they arespeaking of something that actually happens or something that should be happening.This form of discourse is unacceptable for scientific purposes.

Note, however, that the theory of scienticity (introduced earlier) explains whylegal professionals such as lawyers and law professors routinely confuse facts andvalues about law: Their closeness to the subject makes it difficult for them to bescientific. Instead, they continually embrace the existence and operation of law. Theyromanticize it. They revere it as a sacred process. They worship it. They are no morelikely to be scientific about law than is a priest to be scientific about God.

But I have a great advantage: I am not a lawyer. I am not intimate with law. It istherefore easier for me to take an observer’s rather than a participant’s perspectiveon the subject — to be scientific. As a sociological observer, I do not evaluate law asgood or bad. I do not judge law when I say it is partisan or criminal. I simply


describe and explain how law behaves. But because lawyers and others regardsomething that is partisan or criminal as bad and even unworthy of being called lawat all, they may wrongly assume that I am being critical of law. One individual oncesaid to me, for instance, that my book The Behavior of Law should have been calledThe Misbehavior of Law. He could not understand a purely scientific perspective onlaw. Yet I could as well be a zoologist studying a creature in a forest or anastronomer studying a comet in the sky. To me law is just one of countlessphenomena whose behavior we can observe, describe, and explain.

Justo: If law is a partisan process, is it worth asking for more law in matters ofsocial injustice such as violations of human rights? What are the policy implicationsof your theory?

Black: To speak of the policy implications of any scientific theory is acontradiction in terms. Science knows only facts, and facts alone have no logicalimplications of an evaluative nature — about what is right or wrong or good or bad.Public policy entails value judgments that lie beyond scientific knowledge.Accordingly, my view that law is partisan has no logical implications about whatlaw should or should not do. And I am unwilling to advance my personal values inthe name of sociology. I believe such a practice would be both misleading andirresponsible.

But perhaps you were asking whether it is possible to use the pure theory of law(including the theory of partisanship) to help or oppose particular segments of thepopulation. If so, the answer is yes. My theoretical work is readily applicable topractical problems. If you wish to direct more law against a particular party, forexample, you can use the pure theory of law to design a case structure that is morelikely to succeed — to defeat your adversary. In my book Sociological Justice I callthis ‘‘sociological litigation’’ (Black, 1989, Chapter 2). The theory of partisanship,for instance, implies that you are more likely to win if the judge or jury is closer toyou than to your opponent — which might lead you to bring the case in your ownlocal court where the officials are closer to you than to your opponent. Because thetheory of law implies that a case brought by an organization is more likely to succeedthan a case brought by an individual, you might also want to find an organization tobring the case in its name rather than yours. And so on.

You might wonder if the pure theory of law is similarly applicable to legislation.Does the theory tell us how to use law as an instrument of social change? Can welegally engineer what some would call a better society, with less social injustice ineveryday life? The answer depends on the social structure of the problem.

Recall that the pure theory of law tells us where in social space people are morelikely to use law to handle conflicts — the same locations and directions where casesare more likely to succeed or attract severity. For example, because within a societylaw varies directly with relational distance and because downward law is greater thanupward law, we know that intimates are less likely to use law against each other thanare strangers, and that social inferiors are less likely to use law against their superiorsthan are social superiors to use law against their inferiors. If intimates and socialinferiors do use law, they are less likely to succeed. This means that legislation hasless potential impact on the rights of intimates than on the rights of strangers, and


less on the rights of social inferiors than on the rights of social superiors. Legislationmay thus encounter structural resistance to law — social locations and directionswhere people are less likely to use their legal rights (and less likely to succeed if theydo).

Where structural resistance to law is high, the impact of law can only be low.Legislation directed at families, for instance — such as laws pertaining to domesticviolence — inevitably encounters the structural resistance characteristic of intimaterelationships: Victims of domestic violence are relatively unlikely to invoke theirlegal rights (and relatively unlikely to succeed if they do). People at the bottom ofsociety are similarly unlikely to invoke their legal rights against social superiors suchas their employers, landlords, or government officials. Such locations are difficult toreach with legal help. Here and elsewhere, the pure sociology of law allows us toassess more realistically law’s capacity to change the world.

Although the pure theory of law cannot tell you what anyone should do, then, itcan tell you the most effective way to do what you might want to do. It can also tellyou what is likely to be a waste of effort — where law will encounter structuralresistance and have little impact. It provides a practical guide by which you canpursue your legal interests.

Singer: In Sociological Justice you also discuss the possibility of using your theoryas a practical guide to reform the judiciary system. For example, you suggestreplacing judges and juries with computers. You say this would result in somethingcloser to equality before the law than the present system of courts allows. But if youreplace judges and juries with computers, you would not be able to consider thepeculiarities of each case. You would have no discretion. You would need universalstandards of guilt and innocence. Would that be a desirable system of justice?

Black: I do not advocate or oppose anything in Sociological Justice or any of myother works. Although that book describes several practical applications of mytheoretical work, I do not evaluate those applications from the standpoint of publicpolicy. My scientific ideas are more important to me than are their practicalapplications, and truthfully I wrote Sociological Justice primarily to attract a largeraudience for my scientific work.

In any event, the matter you mention — the computerization of justice — is simplythe most extreme version of a practical idea I call the ‘‘desocialization of law’’(Black, 1989, Chapter 4). Before I discuss this idea, however, I want to acknowledgethat it would indeed greatly reduce the discretion of legal officials. But note that legaldiscretion is desirable only to those who benefit from it — those whose sociallocation gives them legal advantages (see Baumgartner, 1993). Those with legaldisadvantages would surely rather have a legal system that handles all cases in thesame fashion, regardless of their social location.

Equality before the law (also known as universalism) does not describe the actualoperation of any known legal system, past or present. The conception of law taughtin law schools — the same law for all cases of the same kind — is a myth. It does notexist. Instead law differs from one case to another. It changes with the socialstructure of the cases. It is situational. The discovery of this phenomenon — thesocial relativity of law — is undoubtedly the most important breakthrough in the


understanding of law in the history of legal thought. Its human significance would bedifficult to exaggerate. It is as if we have discovered what virtually everyone wouldregard as a terrible disease that infects the entire legal system, a disease that hasalways been present without our awareness, and a disease that has no known cure.So naturally the question arises: Can anything be done to protect us from this legaldisease? Can we reduce or eliminate the legal relevance of the case structure, such asthe social status of the parties, their ethnicity, and the degree of intimacy betweenthem? In other words, can we reduce or eliminate what some would call statusdiscrimination, ethnic discrimination, relational discrimination, and so on? Can weengineer a legal system in which equality before the law actually exists? The answer isyes: Sociological Justice introduces sociological technology that could sharplydecrease inequality before the law.

Two principles of legal behavior are pertinent: (1) Inequality before the law is a

direct function of the social diversity of the cases. Social differences in the cases resultin legal differences in how they are handled — who wins, what happens to the loser,and so on. And (2) The social diversity of the cases is legally relevant only to the extent

that social information about the cases enters the legal process. If the social location ofa case is unknown, its social location is legally irrelevant. We could therefore reduceor eliminate inequality before the law simply by reducing or eliminating the socialinformation that presently enters the legal process. I call this a ‘‘desocialization oflaw’’ because it would effectively erase, to one degree or another, the social locationof the cases (Black, 1989, Chapter 4). Their social location would become more orless invisible, and an invisible social location is legally irrelevant. Eliminate socialinformation about whatever kind of discrimination you wish to eliminate, then, andthe discrimination will disappear. If you wish to eliminate discrimination by race orsocial class, for instance, simply eliminate information about race or social classfrom the legal process.

Oddly enough, I got the idea of desocialization when thinking about the absenceor near absence of inequality in the enforcement of parking laws. The police officerjust walks along and mechanically tickets every car with an expired meter or otherviolation. Inequality before the law — parking law — does not exist. The reason isthat parking justice is socially blind: Police officers handle parking violations in alarge city with virtually no information about the social location of the drivers. Animplication is that if all legal cases were to share this feature of parking cases —social invisibility — inequality before the law would disappear.

One way to desocialize law would be to implement new procedural rules thatexclude courtroom testimony or other evidence about the social structure of thecases, such as information about the wealth of the parties, their ethnicity, degree ofintimacy, employment, place of residence, and so on. Another would be to bifurcateeach trial into two separate tribunals, one to decide the winner (what lawyers callfact-finding) and a second to decide the remedy (such as the nature of thepunishment). The remedy tribunal could then exclude some or all of the socialinformation known by the fact-finding tribunal. In the United States, for instance,where capital punishment is more likely when a black kills a white than when therace of the parties is the same, the remedy tribunal could completely eliminate race as


a factor in capital punishment simply by excluding racial information from itsdeliberations.

I should add, however, that race alone does not explain why blacks convicted ofkilling whites attract more severity. Killings of whites by blacks are more likely to bedistant (between strangers) and upward (against a social superior) — case structuresthat attract more severity regardless of the race of the parties. Even without racialinformation about the killings, then, blacks who kill whites would still receiveharsher treatment. But excluding information about the nature of the relationshipbetween the parties and their social status could eliminate these effects as well. Suchis the logic of desocialization. Computerizing the handling of cases — ‘‘electronicjustice’’ — could extend the desocialization of law even further. The computer wouldexclude not only social information but also the direct participation of such partiesas the adversaries, witnesses, lawyers, judges, and jurors. It would dehumanize aswell as desocialize the cases.

Singer: But should law be indifferent to the peculiar features of each case? If youremove social information from the legal process, everyone found guilty of the sameoffense would receive the same punishment, regardless of the circumstances thatmight have been involved in the crime. Would that be desirable?

Black: I am not saying which features of a case should influence its disposition.Sociological Justice merely shows how it is possible to reduce or eliminate in-equality in the handling of cases by removing social information and possiblyeven people from the legal process. But even if you desocialize and dehumanize thecases, you could still retain any information about the cases that you regard asimportant. For example, you could still retain information about the presence orabsence of mitigating circumstances in the commission of a crime or the degree ofhardship suffered by the victim of a crime. In fact, you could remove only theelements of a case that lawyers claim are legally irrelevant anyway — the socialelements. But it is not for me to decide what legal reforms are desirable. As asociologist, I address only the behavior of law that actually occurs, and the behaviorof law that is possible.

Justo: You have another practical idea in Sociological Justice that I would like youto elaborate. You call it ‘‘legal minimalism’’— the reduction of law to a minimum.Can you tell us how legal minimalism compares to other proposals to reduce law,such as the movement to eliminate criminal justice known as penal abolitionism?

Black: Legal minimalism is a strategy of legal reform with various possibleapplications. It employs my sociological theory of law, so in this sense it is a form ofsociological anarchism. It is a planned shortage of law.

Unlike traditional anarchism as a political movement, legal minimalism is a matterof degree. It need not entail large-scale legal change such as the replacement ofcriminal justice with other forms of social control (as advocated by penalabolitionists). It need not even entail a legalization of conduct that is now illegal.It might involve only a reduction of a punishment or a removal of a legal practicenow permitted to legal officials or citizens. In the US some years ago, for instance,the Massachusetts Supreme Court abolished the death penalty to assure that racewould not be a factor in its application. Legal minimalism involves the same logic. If


you do not like the way law is working, apply the death penalty to law itself — thepart you do not like. It is a kind of social control of law rarely advocated by legalprofessionals.

The usual strategy of legal reform is exactly the opposite. The oldest recipe forbetter law reads as follows: To improve law, add more law. Is law unjust orineffective? Then give legal officials more power and use law still more than before.Introduce new legislation, new grounds for lawsuits, new penalties, and so on. Legalminimalism involves precisely the opposite strategy. It destroys law as a means oflegal reform.

More specifically, legal minimalism applies the following sociological principle:Law varies inversely with other social control (Black, 1976, pp. 107–111). Although wehave long known that law increases as traditional forms of social control decline (apattern outlined in Roscoe Pound’s Social Control through Law, 1942), the reverseoccurs as well. Other social control (such as ostracism, violence, criticism, andconciliation) increases as law declines. And the reduction of law does not necessarilyentail an overall reduction of social control. It may even stimulate new forms ofsocial control that are more frequent and severe than law. What happens depends onthe social location where law is reduced.

In Sociological Justice I mention the case of Japan, where a strategy of legalminimalism has been pursued (possibly for the most part unconsciously) for much ofthe past century. Japanese law is often both difficult to use and weak in itsenforcement, especially in civil matters such as breaches of contract and negligencecases. Japan also has a shortage of lawyers and judges. The country has been starvedof law. But legal starvation has apparently given rise to other kinds of social control,including various conciliation procedures and informal means of excluding,expelling, or otherwise punishing those regarded as untrustworthy or irresponsible(see Haley, 1982).

In Western societies such as the US, legal minimalism provides an alternative tolegal practices that some regard as unfair, inefficient, or otherwise undesirable.Consider, for example, how American police sometimes handle teenagers who gatheron street corners and possibly annoy adults: They chase the boys away, notinfrequently with harsh language and the threat of violence. Because adults rarelyexperience similar treatment, some (including the teenagers) might view policebehavior of this kind as discriminatory and improper. One way to end the practicewould be simply to minimize police contact with teenagers in public places: Chasethe police away instead of the teenagers.

Or consider the handling of bad debts, particularly those involving small amountsof money. In the US, so-called ‘‘small claims courts’’ were long ago created to allowordinary citizens to file minor lawsuits without the involvement and expense oflawyers. But in many localities business organizations have largely monopolizedsmall claims courts to collect bad debts from individuals. The courts have therebybecome little more than debt collection agencies financed by the taxpayers. Ifbusiness organizations were completely excluded from small claims courts, however,they would have to develop new ways to determine whether people should begranted financial credit in the first place. Like the Japanese, they would have to


decide which individuals to trust, and would have to develop new ways to handletheir mistakes.

Organizations presently initiate a disproportionate share of all legal cases,criminal as well as civil. And when their adversary is an individual, they usually win— arguably a form of discrimination in itself (see Black, 1976, Chapter 5; 1989,pp. 41–46). Although it would be possible to reduce the advantage of organizationspartly by reducing their access to law, another strategy presented in Sociological

Justice would instead increase the social stature of individuals. I call it the‘‘incorporation of conflict’’ — the creation of organizations to represent individualsinvolved in conflicts (Black, 1989, Chapter 3). Such organizations (which might becalled ‘‘legal co-operative associations,’’ or ‘‘legal co-ops’’) would drastically alterthe social structure of conflict by taking the place of both individual complainantsand alleged offenders. Everyone with a legal problem would effectively become anorganization, reducing the legal disadvantage of being a person. Because theidentities of individuals would be submerged in the legal co-ops, they would alsoreduce legal disadvantages of other kinds, such as the disadvantage of being poor,unrespectable, or a member of a minority group.

But again I must emphasize that I do not wish to advocate any of these practicalapplications of legal sociology. I am even uncomfortable using a value-laden termsuch as ‘‘discrimination.’’ I am a sociologist, not a social critic. To me the practicalvalue of the ideas is incidental. I mainly want to draw attention to the theory thatpredicts and explains the behavior of law as a natural phenomenon. And, beyondlaw, I want to draw attention to pure sociology itself — a new science that promises abetter understanding of virtually every form of human behavior.

3. Applications of the theory

Buoro: We would like to learn whether your theory of law addresses the largercontext in which a case is handled. What is the relevance of the historical, cultural, orpolitical context in which law operates? For example, what is the relevance the state,such as how the state is organized?

Black: The larger society provides the raw materials for the social structure of thecases. And it is the social structure of the cases — their geometry — that explainshow they are handled. Suppose, for example, that a society has a great deal of ethnicdiversity and economic inequality. These societal characteristics by themselves donot tell us how law will behave from one case to another. The reason is that thehandling of each case depends on its own peculiar social structure, its specificlocation and direction in social space. The characteristics of a society as a whole havean impact when the social structure of a particular case contains thosecharacteristics. What, for instance, is the ethnic structure of the case? Do thelitigants have different ethnicities? Is one from an ethnic majority and the other froma minority? If so, who is the complainant? What is the ethnicity of the legal officialsinvolved in the case? We likewise examine the economic structure of the case: Is thecomplainant wealthier than the defendant, or vice versa? Only a culturally diverse


and economically stratified society can have legal cases with considerable culturaland economic distance between the parties, but some of its cases will still occurbetween parties who are culturally close or economically equal, whether equallyprosperous or equally poor. We must always look at the peculiar geometry of eachcase to understand how it is handled.

The state itself is often part of the case structure as well, such as when the stateprosecutes a criminal case and when a state official decides its fate. The state’s owncharacteristics (such as its level of resources and degree of centralization) then helppredict and explain the handling of the case: The stronger the state, for instance, thegreater will be its advantage when it pursues a case against a citizen. A strongerstate’s police officers, prosecutors, and judges will also be more authoritative —formalistic, decisive, coercive, and punitive (see Black, 1998, Chapter 8). The sameapplies to any other governmental entity that participates in a case. For example, apolice officer representing the German Nazi state or a similarly powerful andcentralized state is more authoritative than a local police officer in, say, modernNorway or Greece.

The geometry of social life provides more precise predictions and explanationsthan traditional units of analysis in sociology, such as societies, communities, andindividuals (see Black, 1995, pp. 852–858). When sociologists try to explain violence,for instance, they commonly attribute it to society as a whole, some part of society,or to the individuals who behave in a violent fashion. They say that the US is a‘‘violent society,’’ for example, that some parts of society have a ‘‘culture ofviolence,’’ that some individuals have a ‘‘violent personality,’’ that some are violentbecause they are ‘‘frustrated’’ about something (such as their poverty ormistreatment), or that others are violent because they learn it growing up. But allsuch explanations are extremely weak. Most people in the US are not violent, andthose who are violent are not violent in all their relationships all the time. Instead,violence has its own geometry. It occurs in particular locations and directions insocial space. Social structures are violent, not societies or individuals. So for eachform of violence: Lynching has its own social structure, for instance (see Senechal dela Roche, 1997, 2001), as do the blood feud and the violent defense of honor (seeBlack, 1995, p. 855, note 130; 1998, pp. 74–78). The same applies to law. Socialstructures are litigious or punitive, not societies or individuals. The shape of socialspace — geometry — determines everything.

Many sociologists may not understand my work on law and social controlbecause they do not understand the nature and logic of pure sociology. So lately Ihave been writing about pure sociology itself — emphasizing how it differs fromother sociology (see, e.g., Black, 1995, 2000a, 2000c). Pure sociology is a radicaldeparture from the classical tradition that has dominated sociology for more than acentury.

Justo: Is the theory of pure sociology applicable to single cases? Could youcomment on the movement from the empirical subject upward to the theory and themovement from the theory downward to the empirical subject?

Black: The pure theory of law best applies to a single case if we compare the socialstructure of that case to one or more other cases. The theory will then tell us whether


the case in question is more or less likely to result in a lawsuit, prosecution,conviction, severe penalty, or whatever else we may wish to predict or explain. If theparties in one case are relationally more distant than those in another, for instance,we can deduce from our theory that the more distant case will attract more law—allelse being the same.

But an explicit comparison is not always necessary. Occasionally all thedimensions of a case structure point in the same direction. An example would bea criminal case in which the complainant is relationally and culturally distant fromthe alleged offender and is also socially superior to the alleged offender along variousdimensions such as wealth, conventionality, integration, and respectability. Supposeas well that the legal official handling the case is relationally and culturally very closeto the complainant but very distant from the alleged offender. Such a case structurewould be highly attractive to law, and we can reasonably expect that the allegedoffender would lose the case and receive a relatively severe punishment for the crimeinvolved. Yet even here we are implicitly comparing the case to others with contrarycharacteristics. Perhaps someday it will be possible to put the social structure of asingle case into a mathematical equation and specify exactly how much law it willattract. But for now we still need a logic of comparison.

Buoro: How then would you judge the scientific value of anthropology? Is it notprimarily devoted to single cases?

Black: Anthropology is a highly diverse field, especially if we consider itsentire history. Even so, it is true that the typical anthropological study has beena case study of one tribe or ethnic group in one locality, probably with specialreference to one or two features of its characteristics, such as its religion,politics, economy, or law. The anthropologist has literally lived with the subjectof the research. And because very close subjects attract less scienticity, it isnot surprising that anthropologists have produced little of the most scientifickind of science: theory. Many anthropologists have a humanistic conception of theirfield, and they are sometimes openly hostile to scientific theory about humanbehavior.

But anthropology is too important to leave to the anthropologists. The numerouscase studies produced during the past century by dedicated anthropologists, oftenworking under difficult conditions across the world, are extremely valuable —literally priceless. Without this wealth of information I cannot imagine how we coulddo theoretical sociology at the highest level — applicable throughout the socialuniverse and across time. The formulation of any general theory of social life is likelyto be inspired partly by the anthropological literature, and the validity of any suchtheory is likely to be tested at least partly by the findings contained in that literature.Anthropology thus provides much of the empirical basis for theoretical sociology, asdoes history, just as experimental research provides much of the empirical basis forsciences such as physics and chemistry. Yet few modern sociologists are familiar withthe anthropological or historical literature on their specialties, whether law, violence,religion, inequality, the family, or anything else. This undoubtedly explains why theyhave developed little exciting sociological theory since the classical era of sociology acentury ago (see Black, 2000a, pp. 351–361).


4. The pure sociology of Brazil

Justo: You said earlier that your theory is most useful in comparisons. Iwould therefore like to present a couple of Brazilian illustrations for comparativepurposes.

First, during the past 20 years, wealthy Brazilian landlords have been suspected ofkilling or hiring someone to kill some 1,500 peasants. But a legal case was broughtagainst the suspected landlord in only about one percent of the cases. Would youagree that your theory is easily applicable to this situation?

Black: You have described a legal situation in which the alleged offenders —wealthy landlords — are largely immune to law when they kill peasants. And youcorrectly suggest that legal immunity of this kind is, theoretically speaking, entirelyconsistent with the social structure of the cases. For example, the alleged offenderalways has a vastly higher elevation — social status — than the victim. Unless otherelements of the case structure have a countervailing effect, upward cases with somuch vertical distance between the parties are extremely difficult to win. Therelevance of the case structure is especially obvious if we compare the cases oflandlords accused of killing peasants to those of peasants accused of killinglandlords. Whereas an accused landlord is frequently not even prosecuted, anaccused peasant would almost certainly be prosecuted, convicted, and punished withthe fullest severity of law (unless vigilantes or other partisans of the landlord kill theaccused peasant themselves).

The cases between Brazilian landlords and peasants structurally resemble thosebetween lords and serfs in feudal societies. Brazilian peasants have a serf-likeinferiority to their landlords, and the landlords have an immunity to law not unlikethat of feudal lords. But the degree of inequality between Brazilian landlords andpeasants could actually be greater, and the legal condition of the peasants could beworse. The peasants do have some legal rights that they are able to invoke, even ifthey sometimes can do so only with difficulty. For this reason their legal condition isquite favorable compared to that of some individuals in other times and places, suchas the slaves of early Brazil and elsewhere. Slaves might be beaten, tortured, maimed,disfigured, or (less commonly) killed by those in charge of their discipline. But theyhad no legal rights at all. In the eyes of the law, they were not even people. Legallythey were closer to domestic animals.

Justo: In recent years the situation has changed to some degree. The peasants haveattracted partisans to their side, and the number of legal cases against landlords hasbeen increasing — though the cases rarely result in convictions. Your work includeswhat you call ‘‘the theory of the third party,’’ a theory concerned with those otherthan the adversaries who might participate in a case. How would you apply thistheory to the handling of the Brazilian landlords?

Black: The fact that peasants are increasingly able to initiate murder cases againstlandlords is indeed a major change, even if the cases do not succeed. And theexplanation surely lies with the increase of partisans on the side of the peasants.Partisans increase the social stature of the peasants and their ability to mobilize lawagainst the landlords. Because the social stature of the landlords and their partisans


remains greater than that of the peasants and their partisans, however, the landlordsstill have an advantage in court.

The theory of the third party extends the sociology of the case beyond its nucleus— the victim (or complainant) and the alleged offender (or defendant). Earlier Iillustrated the pure theory of law by noting the relevance of such factors as thedegree of intimacy between the adversaries and the social status of each. But thesocial structure of a case also includes the social location of everyone else associatedwith it, including legal officials, jurors (if a jury trial occurs), witnesses, and anyonewho might lend support to either side of the conflict. All contribute to the socialgeometry of the case and influence what happens. Hence, just as partisans who jointhe side of a peasant increase the likelihood of legal action against a landlord, so thesupport of still more partisans (especially those with more social status than thepeasants themselves) would increase the likelihood of a victory in court. A peasantvictory would be all the more likely if the legal officials were socially closer to thepeasants and their partisans than to the landlords and their partisans — animplication of the theory of partisanship mentioned earlier.

When a jury handles a case (common in the US), the social location of the jurorsdetermines their degree of partisanship and may help predict who will win. Bothgreater relational and cultural closeness to one side and one side with greater socialstature attract the partisanship of a jury (see Black, 1998, Chapter 7). A party whoenjoys both of these legal advantages is difficult to defeat. The O.J. Simpson murdercase in the US — called the ‘‘trial of the century’’ when it occurred in 1995 —provides a perfect illustration. Simpson, an African-American who became rich andfamous as a football star, was accused of killing his ex-wife and a young man whowas visiting her one evening. Both victims were white, and one (the young man) wasJewish. Nine of the 12 jurors were African-Americans, culturally closer to Simpsonthan to his victims — a jury structure that gave him a significant advantage. (Twojurors were white, and one was Hispanic.) Simpson’s considerable social superiorityover the victims and the jury, his familiarity as a celebrity, and his closeness to one ofthe victims (his ex-wife and mother of his children) gave him even more advantages.And, despite a great deal of evidence against him, after less than three hours ofdeliberation the jury acquitted Simpson of the murders.

But when the victims’ survivors brought a civil lawsuit against Simpson thefollowing year for wrongful death and battery, the jury included no African-Americans at all. Eleven were white, and one was Asian-American. This timeSimpson lost. The jury unanimously found him liable on all eight issues they wereasked to decide, and ordered him to pay millions of dollars in compensation to thevictims’ families.

The crucial difference in the two Simpson trials was the cultural location of thejuries. The largely African-American jury favored the African-American, and thelargely white jury favored the whites. Although the standard of proof is lower in civilcases than in criminal cases (a preponderance of evidence versus proof beyond areasonable doubt), I believe we can infer that the largely African-American jurywould have favored Simpson in the civil trial anyway, while the largely white jurywould have found him guilty in the criminal trial. One reason for this inference is


that all the African-Americans interviewed for the civil jury reportedly said that theythought Simpson was innocent, while all the whites interviewed said that theythought he was guilty — statements the judge ruled should be disregarded in theselection of the jurors. Would those African-Americans have found him liable fordamages despite their belief in his innocence? Surely not. Would the whites havefound him innocent despite their belief in his guilt even after a verdict of innocenthad been rendered? Surely not. Public opinion polls at the time of the criminal trialalso showed the same pattern of partisanship: About 90 percent of African-Americans said Simpson was not guilty, while about 70 percent of white Americanssaid he was guilty. If the higher standard of proof in the criminal trial explains whythe largely African-American jury judged Simpson innocent, why did most whitesjudge him guilty in the same case? The answer seems clear: The African-Americanswere culturally closer to Simpson, while the white Americans were closer to thevictims. The theory of partisanship predicts and explains the difference in theirjudgments in both the trials and the polls.

The O.J. Simpson case provides a rare opportunity to compare how the same casewas handled by two different juries — a natural experiment. We can also performwhat physicists call a ‘‘thought experiment’’ and imagine how the case would havebeen handled if its social structure had been different in other respects. Imagine, forinstance, the outcome of the criminal trial if the accused killer had been a poorstranger with a long criminal record who (like Simpson) hastily left townimmediately after the killing and had a gun and wig in his possession at the timeof his arrest, not to mention the powerful evidence of his guilt. Imagine, too, that theaccused killer was white or otherwise culturally distant from the same largelyAfrican-American jury that so quickly acquitted Simpson. Undoubtedly such alowly stranger of the wrong race would have been found guilty by those whoacquitted Simpson. Indeed, the poor stranger probably would have entered a plea ofguilty in hopes of avoiding the death penalty — sociologically almost inconceivablein the case of Simpson himself. So you see the power of the pure sociology of law:Change the social structure of the case, and you change the legal result.

Justo: I would also like to raise another Brazilian example for your consideration:how the police handle homeless people in our cities. In the city of S*ao Paulo, forinstance, homelessness has been increasing since at least the early 1990s, so policecontact with this population has been increasing as well. In one of your books yousay that in America ‘‘Police officers may beat, kick, or otherwise humiliate homelessmen — those who are socially ‘down and out’’’ (Black, 1998, p. 151; for details, see1980, pp. 29–32). This is also common in Brazil. The behavior of police officerstoward the Brazilian poor is often both disrespectful and violent. Apparently asubstantial degree of social superiority allows the police to kick and otherwisebrutalize homeless people. Would you comment a bit on why the police do not applythe law in this situation?

Black: Why do you say that the police do not apply the law when they kick orotherwise behave aggressively toward homeless people? From the standpoint of puresociology, a police officer kicking a homeless man is law. It is a more aggressive formof law than normally occurs in other locations in social space, but it is still law. The


kicking of a homeless man illustrates what happens when someone simultaneouslyoccupies a number of social locations, all of which are attractive to law andpunishment. A homeless person lacks social status of every kind: He is extremelypoor, and his social integration is extremely low. He lacks possessions, money,employment, a residence in the community, and a family dependent on his support.He is not associated with an organization. He lacks respectability, has an alien wayof life, and may belong to a cultural minority. He is probably a stranger to mostpolice officers as well. A homeless man is, in short, a form of social dirt. And like asocial magnet, he attracts a highly penal style of law. He is not only more vulnerableto formal procedures such as arrest, prosecution, and conviction, but may also bekicked, clubbed, and otherwise degraded in a fashion rarely seen in other sociallocations. His treatment is thus a beautiful specimen of the sociological nature oflaw.

Perhaps I should elaborate the idea of kicking as law. I realize, after all, that manypeople such as lawyers and law professors would say that kicking by a police officeris a violation of law, and that it cannot be an instance of law at the same time. But itcan. Sociologically speaking, it does not matter whether kicking is illegal accordingto the written law. It does not even matter if a particular case of kicking by a policeofficer is handled as a crime and punished (which is extremely unlikely). The kick isstill law — governmental social control. It is an application of legal authority. Theofficer is an agent of the state, and in this sense the state itself delivers the kick. Theimplication may be surprising: Law can be criminal.

Again I acknowledge that virtually all legal experts would disagree. Legal scholarshave said, for example, that many official actions of the German Nazi government(such as the mass arrest, enslavement, and execution of millions of Jews) were notlegal actions. They were crimes. But sociologically these actions were legal andcriminal at once. They were legal because they were acts of German governmentalsocial control, and they were criminal if they were successfully prosecuted after thedefeat of Germany (which happened to only a small proportion of those involved).Law is what actually happens — what is observable — and so is crime. Although thecriminality of law may sound like a contradiction in terms, then, from a sociologicalstandpoint it is not. It is merely something that is two things at once: governmentalsocial control and crime. Law may be subjected to law.

The duality of law and crime is analogous to another duality often seen in modernsocieties: social control and violence. The use of violence by a citizen to punishanother citizen (such as when a man kills his unfaithful wife) is a form of socialcontrol, an act of self-help. Like law, it is a form of justice. Yet in modern societies itis criminal as well. Such violence is therefore both social control and crime — a closerelative of violence that is both law and crime. (For more details, see my essay called‘‘Crime as Social Control,’’ reprinted in Black, 1998.)

A sociologist defines concepts such as law and crime for scientific purposes alone.They should be observable and measurable, and they should be easy to apply. Howthey might be used in a practical or policy-oriented context is sociologicallyirrelevant. Even the written law may not accurately describe the nature of law andcrime. Consider a personal example. I once sued my landlord (who incidentally was a


law professor) for charging me twice the rent allowed by a rent control law (whichlimits the amount a landlord may charge for a particular dwelling). The written lawsaid the landlord must pay the tenant treble damages (three times the overcharge) ifthe violation was intentional, but only simple damages (the amount of theovercharge) if the violation was unintentional. The judge, however, ordered mylandlord to pay me double damages — an impossible resolution according to thewritten law. I did not complain because I was glad to have more than simpledamages, and the landlord did not complain because he must have been glad he didnot have to pay treble damages. Was the judge’s decision law? Absolutely. What elsemight we call it? It was governmental social control. The fact that the written law didnot allow the decision does not change what happened: I won double damages.

Here is another illustration of the sociological reality of law. In the US andelsewhere, people are sometimes arrested and convicted of crimes the police knowthey did not commit. For example, American police sometimes pretend to find illegaldrugs such as marijuana or cocaine in a person’s possession — known as ‘‘plantingevidence’’ — and then arrest the ‘‘offender’’ they have created. Even police officersadmit that their colleagues sometimes engage in this practice (see, e.g., Gould et al.,1974, pp. 82–83). I once found this behavior puzzling — why arrest someone forsomething he did not do? — but I now realize it is perfectly understandable from asociological point of view. Planted evidence is an efficient way to arrest and punishsomeone whose social location is highly attractive to law (such as a person who ispoor, marginal, unrespectable, and unconventional) when the police have no otherevidence of a crime. The guilt lies in the social location. The lack of evidence is aminor detail. For instance, a young man with the appearance of a ‘‘hippie’’ (abohemian style of the 1960s and 1970s) once told me that the police stopped andsearched him when he was hitchhiking in my suburban neighborhood. When theofficers realized he had no drugs or other contraband in his possession, one of thempulled a bag of marijuana out of his own pocket and said, ‘‘I just found this on you.’’They placed the young man under arrest, and he was later convicted of ‘‘possessionof marijuana.’’ He attracted law without violating the written law. But it was stilllaw. He even acquired a criminal record.

The exercise of police authority is law, regardless of what they do. Americancitizens sometimes refer to the police in the same way: ‘‘Look, here comes the law.’’So do the police themselves. If a homeless man protests that kicking him is againstthe law, for example, the police officer involved might well reply, ‘‘I am the law.’’And sociologically he would be right. Perhaps he would even kick the homeless managain to emphasize his point. But a homeless man is not likely to protest in the firstplace. The same case structure that produces kicking and other police violence alsoreduces legal or other action against it. Upward complaints are rare, especiallyagainst agents of the state by those at the bottom of society.

American police officers also occasionally arrest homeless men for crimes they didnot commit. For instance, they might arrest a homeless man for public drunkennesswithout any evidence of his intoxication (see, e.g., Bittner, 1967, p. 704, note 24; 713;Spradley, 1970, p. 124). But such men normally plead guilty anyway (Spradley, 1970,pp. 180, 289). Pleading guilty is a self-application of law, and it obeys the same


principles as other applications of law. Those more vulnerable to law are also morelikely to apply law to themselves. Homeless men are not only vulnerable to thepolice, then, but to themselves as well. They readily convict themselves of crimes theydid not commit (see Black, 1998, pp. 68–69).

Singer: Why?Black: Because of their social location. The pure theory of law specifies various

locations in social space that attract greater or lesser amounts of law. And law obeysthe same principles regardless of the human agent — whether the victim of a crime, apolice officer, a prosecutor, a judge, or even a person charged with a crime. Homelessmen thus plead guilty when they are innocent for the same reason that police officerskick them: Their social location is highly attractive to law. They have a guiltylocation.

I should emphasize again that the pure theory of law predicts and explains thebehavior of law rather than the behavior of people as such. It is not a theory of howpeople make decisions — what they think. It is a theory of how law behaves indifferent environments — how it conforms to the geometry of social space. Commonsense might tell you that people would not want to apply law to themselves,especially when they have committed no crime. That may be true. I do not knowwhat they want. But I know what they do. They readily plead guilty when their socialelevation is low enough and that of their adversary is high enough, when their socialdistance from their adversary is great enough, and so on — when their case has theright location in social space. If this violates common sense, then common sense iswrong. (For more details, see ‘‘Social Control of the Self,’’ reprinted in Black, 1998.)

Singer: It is said that Brazilian police officers torture homeless people to makethem confess to crimes they did not commit. So it seems that in Brazil the homelessman pleads guilty not because of his social location, but because he is tortured.Would you agree?

Black: I neither agree nor disagree. You are reading the homeless man’s mind,whereas I examine only his outward behavior. I do not address his psychology — hismotivation for pleading guilty. I merely observe that both torture and admissions ofguilt occur under the same conditions — conditions highly attractive to law. Thepure theory of law predicts that homeless men in Brazil are likely to plead guilty,whether tortured or not. And torture itself occurs because the social location of thehomeless man is so attractive to law. It might even occur as an extra punishmentafter a homeless man confesses to a crime. In any event, if homeless men are torturedmore in Brazil than in the US, this must reflect a difference in their social location,such as where the police encounter them, whether they annoy people of higher status,and how much social distance separates them from the police themselves. In bothcountries, however, I doubt that anyone is more likely to plead guilty.

Now compare someone such as O.J. Simpson, who vehemently declared himselfinnocent despite overwhelming evidence that he killed two people with a knife. Howdo we explain his refusal to plead guilty? The answer is that Simpson’s social locationcounteracted rather than attracted law: His social elevation above the victims(particularly his great wealth), his closeness to one of the victims (his ex-wife), andhis celebrity status (a form of closeness to virtually everyone) all contributed to his


resistance to law from the beginning (including his initial refusal to obey the policewhen they sought to arrest him in his automobile). Along with his ethnic closeness tothe jury (discussed earlier), the same factors contributed to the verdict of innocent inthe criminal case. While the social location of some individuals results in theirconviction (including their self-conviction) for crimes they did not commit, the sociallocation of others results in their acquittal for crimes they did commit. The puretheory of law explains both.

Justo: Homeless people and poor teenagers in Brazil have much the same legalsituation as the American homeless. But in the US the police seem to be hostile to allpoor people, and vice versa, whereas in Brazil the poor often approve of the policedespite their harsh treatment. Could you comment on this difference?

Black: It is difficult to know how people actually feel about the police and law.And in any case pure sociology does not predict or explain attitudes — apsychological subject. I shall nevertheless venture an impression. It seems to me thatmost people regard law as right and just in most instances. If so, why would theAmerican poor be more critical of the police than are the poor of Brazil? I can onlyspeculate that it reflects a difference in the social location of each. I am thinkingparticularly of a phenomenon I discuss in The Behavior of Law: The tendency tomake complaints — including complaints about the police — increases with thesocial elevation of the individual or group (Black, 1976, p. 27). Wealthy people, forexample, complain more than poor people. In this sense, poor people are moretolerant than those who are better off. And because the Brazilian poor are poorerthan the American poor, the former may be more tolerant of the police than are thelatter. Although the American poor probably tolerate police behavior that theAmerican middle class would criticize, then, they may not be poor enough to toleratethe police behavior tolerated or even endorsed by the Brazilian poor.

But I repeat that people generally seem to agree with the legal behavior that occurs.For example, they regard crimes against strangers and social superiors as worse —more serious and deserving of more law — than crimes against intimates and socialinferiors. And that is how law actually behaves. Their own legal behavior, such astheir calls to the police and use of the courts, exhibit the same patterns. Such patternsare examples of inequality before the law — commonly known as discrimination.

Paradoxically, however, most people seem to believe that inequality before the lawis wrong and unjust. It is also my impression that human beings everywhere usuallytry to do what they think is right and just. Nearly everyone believes that only other

people are prejudiced and discriminatory, not themselves. It is only when confrontedwith a concrete case such as a particular crime that they react in a manner thatendorses and possibly perpetuates inequality before the law. They unconsciouslyconform to the shape of social space, and unknowingly serve as agents of somethingthey regard as wrong.

Buoro: When you compare police behavior in the US and Brazil, your theorysuccessfully predicts various similarities between the two. In both societies, forexample, the principle of relational distance correctly predicts that the police will bemore severe when a crime occurs between strangers than when it occurs betweenpeople in a closer relationship. But there are also differences between the US and


Brazil. For instance, Brazil seems to have more of what common sense would call‘‘illegal behavior’’ by the police, such as more violence against homeless people andteenagers. Can your theory explain differences of this kind? Or do we need aperspective such as anthropology or history might provide?

Black: The pure theory of law explains legal differences as well as legal similarities.It is capable of explaining legal behavior everywhere. Its principles apply throughoutthe social universe — past, present and future. Similarities occur when the socialstructure of the cases is similar, and differences occur when the social structure of thecases is different.

The US and Brazil differ in various ways, and the social structure of their legalcases differs accordingly. Each society has, for example, different patterns ofeconomic inequality and cultural diversity. The social structure of police encounterswill reflect these differences. As I noted earlier, for example, the Brazilian poor arepoorer than the American poor. Apart from its homeless people, the US has nosignificant population such as those who inhabit Brazil’s so-called favelas —squatters with no legal right to occupy their dwellings. Nearly all the American poorhave legal dwellings and many possessions such as automobiles, television sets, airconditioners, and various household appliances regarded as luxuries in mostcountries. In fact, by Latin American standards, the US has few truly poor people atall. Finally, because for several decades the American police have increasinglyincorporated members of disadvantaged groups — especially African-Americansand Hispanic-Americans — into their own ranks, the social distance between thepolice and the poor has been decreasing. This growing closeness is observable fromone police encounter to the next.

Now compare Brazil: The Brazilian police are considerably more distant from theBrazilian poor, economically and otherwise, than are the American police from theAmerican poor. For instance, Brazilian police are separated from the poor by morecultural distance than are the police of the US. I refer particularly to culturaldifferences between the Brazilian police of European heritage and the poor ofAfrican heritage or (in rural areas) indigenous heritage. Cultural differencesassociated with social class may be greater as well. And the more social distanceseparating the police from the citizens they handle, the more severe they will be(Black, 1998, Chapter 8). We would therefore correctly predict more police violencein Brazil than in the US. Brazilian police are more likely to shoot poor people, beatthem, kick them, torture them and so on. Examine the social structure of the cases,then, and you will find that the pure theory of law predicts and explains legaldifferences between Brazil and the US, or between Brazil and anywhere else. Laweverywhere obeys the shape of social space. Justice is geometrical.

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The Geometry of Law: An Interview with Donald Black

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