Peter Bergwall Philosophy of Science for the Social Sciences

The Sociology of Law Unit The Faculty of Social Sciences

Lund University Fall Semester 2012-2013

Donald Black’s Philosophy of Science

Examination paper

Philosophy of the Social Sciences

Abstract

The aim of this paper is to present the ideas and philosophical positions of Donald Black’s sociology

of law set against traditional debates of value-neutrality and the fact-value distinction. The reading of

Robert Bishop’s The Philosophy of the Social Sciences (2007) forms a background for the present

discussion. Black has directed critique against contemporary sociology of law since the 1970’s be-

cause of the discipline’s focus, in Black’s opinion, on policy-making at the expense of scientific con-

tent. Black calls for a pure sociology, stripped of psychology, value judgements, and agency. Bishop’s

book describes the difficulties in doing value-neutral social science, precisely what Black has set out

to do. Bishop argues that science purporting to be value-neutral is in fact expressions of liberal ideolo-

gy. Had it not been for Black’s own sharp criticism of liberal sociologists of law, he might have served

as an example of the disguised liberalist that Bishop is talking about. Careful readings of Black reveal

though that he is actually a philosophical anarchist, although he is seldom explicit about it. The philo-

sophical anarchism is not discussed in Bishop’s book, hence making it hard to fit Black into anyone of

Bishop’s philosophical moulds. Following the revelation of Black’s philosophical origin makes his

refusal to take sides or advocating one legal model above the other all the more logical. This is in ac-

cordance with the anti-hierarchical philosophical anarchism that Black is influenced by. Thus, Black’s

theory of law as governmental social control enables comparisons of law with other forms of social

control. No social control system – including law – is morally superior to others.

Table of Content 1 The Paper – Aim and Question at Issue .......................................................................................... 1

2 Background ...................................................................................................................................... 2

3 Value-Neutrality Debates ................................................................................................................ 4

3.1 Getting Rid of Subjectivity ....................................................................................................... 4

3.2 The Myth of Value-Neutrality .................................................................................................. 6

4 Donald Black’s Philosophy of Science ........................................................................................... 10

4.1 Philosophical Anarchism........................................................................................................ 10

5 Conclusions .................................................................................................................................... 13

5.1 Towards an Anarchist Sociology of Law? .............................................................................. 13

Literature list ............................................................................................................................................ i

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1 The Paper – Aim and Question at Issue Debates within philosophy of the social sciences are often concerned with problems of scientific val-

ue-neutrality. That is, how can scientists conduct social inquiry unbiased by the values of the investi-

gator or the study subjects? Is such value-neutrality even possible anywhere outside the realms of the-

ory? And if not, why should social science make an effort to accomplish value-neutrality? (Bishop

2007a: 124)

Donald Black, American sociologist of law, has devoted his career to the development of a sociology

based on facts and free from values. Although Black admits, like Max Weber before him, that a com-

pletely value-free scientist and thus a completely value-neutral science is impossible, he still withholds

that social scientists should at least aim at value-neutrality. “The fact that scientific statements are

influenced by values does not make them value statements” (Black 1972: 1093).

In reality nothing is of course entirely black or white, but at least in theory there are two opposite poles

in this debate. On the one hand, there are those who view value-neutrality as nothing but a utopian

ideal. Instead of trying to do the impossible – achieving total objectivity – social scientists should be

open about and account for their subjectivity and ideological drives for doing research. On the other

hand, there are scholars like Black who advocates an annihilation of the human subject and, thus, all

value judgements from social science. Here is an obvious tension between two philosophical perspec-

tives that is at the same time problematic and intriguing.

The aim of this paper is to present the ideas and philosophical positions of Donald Black’s sociology

of law set in relation to traditional debates of value-neutrality and the fact-value distinction. The read-

ing of Robert Bishop’s The Philosophy of the Social Sciences (Bishop 2007c) forms a background for

the present discussion.

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2 Background Along with the American civil rights movement, the Law and Society movement emerged among

American lawyers as a sort of continuation from the tradition of legal realism. These lawyers were

critical of the legal positivist tradition that was dominating American law at the time. Furthermore,

they criticized the self-image of the American legal system as a system where everybody is equal be-

fore the law; an image they claimed to be false. The legal realists, and ultimately the Law and Society

movement, had the ambition to use law as a tool for social progress instead of merely as a method for

deciding legal cases. Over time, the American sociology of law discipline has been dominated by the

Law and Society movement, although the two are not to be viewed as identical.

Donald Black first made notice of himself on the American academic scene during the 1970’s as a

harsh critic of the Law and Society movement. Black, with a PhD in sociology but at the time active at

Yale Law School, criticized the Law and Society movement for being too policy oriented and not sci-

entifically oriented enough. In fact, Black was critical and still remains critical of sociology of law as a

discipline altogether. According to him, sociologists of law are more occupied with legal policy-

making rather than with social science.

“[The] core problems of legal policy-making are problems of value. Such value considera-

tions are as irrelevant to a sociology of law as they are to any other scientific theory of the

empirical world. Sociologists engaging in this kind of work offer at best an applied sociol-

ogy of law – at worst, sheer ideology.” (Black 1972: 1087)

The quote above is taken from the article The Boundaries of Legal Sociology (1972). Here Black ex-

presses an uncompromising theoretical standpoint, a clear distinction between facts and values and a

firm separation of ideology and policy-making from the social sciences. It was during this time that

Black began to develop the idea of pure sociology, a concept that has since been condemned as well as

celebrated (Cerulo 2002; Collins 2002; Cooney 1986; Gottfredson and Hindelang 1979; Greenberg

1983; Horwitz 1983; Hunt 1983; Marshall 2008; Michalski 2008; Turner 2008; Wong 1995). A pure

theory of sociology, according to Black, must be testable, general, simple, valid and scientifically pio-

neering (Black 1995: 831 pp.).

Black claims to have been more inspired by natural scientists such as Newton and Einstein than by the

sociological classics. He dismisses not only Marx, Weber and Simmel as creators of “untestable theo-

ries” – he does away with Talcott Parsons, Niklas Luhmann, Jürgen Habermas, Michel Foucault,

Pierre Bourdieu, Anthony Giddens, Peter Berger, and Erving Goffman too. “Sociological theory”,

Black says, “contains few ideas capable of being wrong” (Black 1995: 833). More than anything,

though, Black rejects all influence on sociology that comes from the discipline of psychology (Black

2000).

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Black’s philosophy of social science could be connected to the mode of social inquiry that Robert

Bishop labels natural scientific (Bishop 2007e: 46 pp.). As the name suggests, the epistemology of the

natural scientific mode within the social sciences is the same as the one of natural sciences “and pre-

supposes what could be called a subject-object ontology” (Bishop 2007e: 46). At the same time, Black

could be seen as standing in sharp contrast to the mode of descriptivism, according to which human

action cannot be understood without understanding the context of the human subject (Bishop 2007e:

52 pp.). Black is not interested in the motives or psychology behind the actions of human subjects or

groups of people – he is interested exclusively in social structures, and particularly in the social struc-

tures of law (Black 1987, 1993, 1995, 2000, 2004, 2010).

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3 Value-Neutrality Debates Max Weber maintained that while the social scientist’s research framework is influenced by a number

of values, the results of truth of his or her investigation are not similarly influenced. However, others,

such as Michel Foucault, have argued that the possibilities of research results free from either the val-

ues of the investigator or the values of the subjects of investigation are next to none. (Bishop 2007a:

126) Ernest Nagel, Austro-Hungarian-American philosopher and major figure of the logical positivist

movement, claimed that the same influences of values that are worrying many social scientists can be

seen in the natural sciences as well. Hence, it is possible for social scientists to produce unbiased con-

clusions in the same way as within the natural sciences. Nagel differs between appraising value judg-

ments, which expresses approval/disproval, and characterizing value judgments. This distinction in

judgments depends on the fact/value distinction. Bishop sees a problem with Nagel’s approach as it

assumes that this distinction can always be made. Bishop claims this is not always possible, or even

desirable. (Bishop 2007a: 127)

3.1 Getting Rid of Subjectivity In sociology of law many investigators devote a considerable amount of attention to the study of the so

called “gap problem”. In brief, the gap problem could be described as the difference between law in

books and law in action. In other words, sociologists of law are often concerned with what law ought

to do put in relation to what law is in fact doing. Black does not understand this vast interest of sociol-

ogists of law in the gap problem.

“[The] mere evidence of a gap between law-in-action and law-in-theory would not in itself

overwhelm all resistance to change. Who can imagine a study, after all, that would not dis-

cover such a gap? Little is more predictable about the law than that these gaps exist.”

(Black 1972: 1089-90)

Black criticizes sociology of law for exploring, describing and explaining these gaps by attempting to

compare legal reality to an ideal of what law ought to be doing. The investigator, Black says, assesses

his or her empirical materials against concepts or principles, such as “the rule of law”, “arbitrariness”

or “legality”, but without any indication of where these concepts or principles are located. (Black

1972: 1087) In summary, Black views this kind of sociology of law as highly subjective and, there-

fore, unscientific.

“When legal reality is compared to an ideal with no indentifiable empirical referent, such

as “the rule of law” or “due process”, the investigator may inadvertently implant his per-

sonal ideals as the society’s legal ideals. At this point social science ceases and advocacy

begins. /…/ Moral problems of every sort are translated into problems of knowledge and

science of know-how.” (Black 1972: 1090-91)

Black analyzes law as a dependent variable and from a strictly quantitative perspective (Black 1979:

18-19). Black’s theory of pure sociology is general, universal, and attempts to cover both macro and

micro levels as well as everything in between. His definition of law is simple: all forms of governmen-

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tal social control (Black 1972: 1086). Occasionally, Black has even gone as far as aborting the “gov-

ernmental” in order to compare law to other means of social control (Black 1981: 45). For instance,

domestic violence, trivialized by the police as a family issue and “not really a crime” (Black 1979: 22),

is categorized by Black as one form of social control among others. Black accordingly enables a com-

parison of the behaviour of law in domestic violence as a form of social control to the behaviour of

law in other violent acts of social control (i.e., assault and robbery, murder, terrorism).

But, as aforementioned, Black is not interested in the motives behind, for instance, domestic violence.

That would be to take an interest in psychology and Black does not want anything to do with that kind

of, in his view, subjective speculating. He instead analyzes all forms of socio-legal phenomena geo-

metrically (Black 2002a, 2002b, 2004). That is, a study of legal behaviour based on relational distance

between the actors involved in the legal act in question.

In short, Black’s geometrical sociology of law could be explained as follows. If an assaulter and its

victim are closely related, the assault will attract less law compared to if the perpetrator and the victim

had been perfect strangers. Furthermore, upwards directed violence, for instance a guerrilla attack on a

colonial power regime, will likely attract more law than violence directed downwards, such as war

crimes against local civilians committed by an occupational army. These examples are perhaps obvi-

ous; however, Black claims that the geometry of law applies to any legal behaviour on any social level

in any geographical setting during any time period – past, present and future (Black 2000: 347).

Besides psychology, Black rejects social science occupied with one-dimensionality, units of analysis,

anthropocentrism, and teleology (Black 1995: 847). Since Black renounces psychology, he is neither

interested in the individual nor the collective drives behind, for instance, an act of terrorism. Instead

Black has the ambition of explaining and predicting the behaviour of terrorism as a form of social

control, with agency playing no role whatsoever in the analysis. “The subject matter of sociology is

something distinctively sociological, something with its own ontology – its own existence – something

unlike people in the ordinary sense” (Black 1995: 859).

Although rejecting Marxian theory for its insufficiency and “unfalsifiability”, Black’s pure sociology

still bears some resemblance to historical materialism and critique of Hegelian idealism. Even less, if

anything, is said by Black about Louis Althusser – which is a bit puzzling considering Althusser’s

anti-humanism and critical stance on ideology (Althusser 2003; Nordin 2011). It is actually hard not to

describe Black’s pure sociology and theories of law as anything other than strictly (ahistorical) materi-

alist, anti-humanist and anti-idealist.

“Social action replaces individual action. Human behavior becomes the behavior of social

life. People disappear…All these seemingly diverse events by diverse people with diverse

psychologies now become instances of the same phenomenon: law. In each case, something

attracts law. Law increases. Law acts. I therefore explain what is normally regarded as the

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behavior of all these people in all these situations with a single theory of the behavior of

law.” (Black 1995: 860)

“I came to sociology and found it was a charade. Its subject was not social life, but only

people. The person was the center of the social universe. But social life does not revolve

around people. They do not rule society, and never did. Sociology said otherwise, and an

unthinkable revolution was unavoidable. The person had to be overthrown. Only social life

would survive. And I now plead guilty to the crime of pure sociology: I assassinated the

person.” (Black 1995: 870)

Hence, Black has worked hard to accomplish, not only a value-neutral sociology, but even a sociology

completely free of all human presence.

3.2 The Myth of Value-Neutrality As stated earlier, the debate about the possibilities of scientific value-neutrality has often been con-

cerned with the choice of aiming towards value-neutrality or following a path more embracive of sub-

jectivity and value judgments. However, Bishop questions the very value-neutrality of value-neutral

approaches as such. He claims that the value-neutral ambition is deceptive and just another value-

laden standpoint for conducting social inquiry. (Bishop 2007a: 129)

“First, the very ideal of a value-neutral social science is an expression of a substantial po-

litical ideal – political liberalism…the aspiration toward value-neutrality in social inquiry,

as in natural-scientific and descriptivist modes, represents a significant commitment to lib-

eralism, hardly a value-free standpoint for social science.

Second, most social inquiry presupposes an instrumental picture of agency along with a

subject-ontology and epistemology. But this…carries with it deep commitments to liberal

individualism and autonomy, as well as values such as liberty, individuality, tolerance, re-

spect and so on: all part of the furniture of modern Western culture.” (Bishop 2007a: 129-

30)

Authentic objectivity, Bishop claims, has little to do with value-neutrality. All of our scientific find-

ings are partial and inexact due to our intellectual abilities together with the complexity of the world

we are trying to describe. Furthermore, “there is a deep connection between distinctly modern (and

often worthwhile) values and the adoption of objectifying approaches”. (Bishop 2007a: 147-48)

So, what Bishop is saying is that the default setting of all modern social research is ideological, and

the dominant ideology is the liberal ideology. Bishop is particularly addressing the liberal approach of

methodological individualism which, in a reference to Weber, he says “maintains an adequate under-

standing of human action” and “places emphasis on individual psychology and actions” (Bishop

2007b: 152).

There seems to be a paradox here. At the one end we have Donald Black, who rejects the value-laden

heritage of sociology of law and its ideologically driven scholars. At the other end we have Robert

Bishop, who declares all modern research ideological. Donald Black could very well serve as the ideal

type of non-ideological ideologist that Bishop refers to in his description of liberal individualism dis-

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guised as value-neutrality. The paradox is that Black’s own attitude towards liberal ideology (to any

ideology, really) and the fact that, generally speaking, his disapproval of it seems to be founded on the

same basis as Bishop’s criticism is founded upon. Liberalism is value-laden even when it claims it is

not.

How can this be? One reason for this confusion might be the different academic disciplines that Black

and Bishop represent and, hence, their different attitudes to liberalism as a theoretical concept. Bish-

op’s perspective refers to liberalism in a broader sense, as the philosophical ideal going back to the

Enlightenment and the birth of Western democracy that brought us political ideas of equal rights, obli-

gations and liberties for each and every man. Black, on the other hand, seems to be criticizing liberals

from a policy oriented point of view. That is, he is criticizing liberals for trying to be liberals and sci-

entists at the same time.

About Leon H. Mayhew’s study of the Massachusetts Commission Against Discrimination (Mayhew

1968), Black writes:

“What is critical is not that [Mayhew] selects the fair-share approach1; it is that he selects

any definition at all as correct for the social system. I suggest that a less liberal sociologist

would arrive at a quite different conclusion for action where he to begin with the same the-

ory and the same data. Put another way, I say there is no logical unity of theory and action

to be found in Mayhew’s interesting work.” (Black 1970: 181)

On the mobilization of law, i.e. “the process by which a legal system acquires its cases” (Black 1973:

126), Black discusses two models of law: reactive law and proactive law. In the first instance the legal

authorities reacts to a request by a citizen, in the other instance the state acts on its own behalf, without

a complaint from a citizen. In legal theory, Black claims, American criminal justice is viewed as a

highly aggressive process in maintaining law and order and by bringing criminal actions to court. In

reality, however, the typical case comes to the attention to the legal authorities, not through initiatives

from the police but through the initiative of private citizens in the form of complaints. (Black 1973:

129)

In opposition to widespread opinion2, criminal law bears more similarities with private law that one

might think, Black claims. “A reactive system lodges the responsibility for detection of violations in

citizens, thereby binding the control process to whatever law violations citizens are unable to see, fail

to notice, or choose to ignore” (Black 1973: 130). On the other hand, “a citizen-based system of legal

1 The fair-share approach: sometimes known as the quota approach (nondiscrimination values are supported

only when colored people in the aggregate receive economic benefits in proportion to their number in the citizen population). Donald J. Black, 'On Law and Institutionalization', Sociological Inquiry, 40/1 (1970), 179-82 at 180. 2 Here, Black is referring to the American legal system and American citizens.

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intelligence3 receives much information about legal cases that would otherwise elude its attention”

(Black 1973: 131).

Reactive law, according to Black, “portrays an entrepreneurial model of law…It is the legal analogue

of a market economy”. The proactive system, “by contrast, is a social-welfare model of law, with the

legal good of the citizenry being defined and then imposed by government administrators” (Black

1973: 138).

“The liberal fear of a proactive legal system has long been a part of a fear of discriminato-

ry enforcement. But whether a system of mobilization is reactive or proactive does not de-

termine the probability of discrimination enforcement; rather, it organizes that probability.

A reactive system deprives state officials of the opportunity to invoke the law according to

their own prejudices, but it creates that opportunity for the average citizen.” (Black 1973:

142-43)

So, Black is really in a way confirming Bishop’s claims of that the apparent absence of ideology is in

fact an expression of liberalism. Black is careful not to advocate any one of the two models of law

mentioned above. “[There] is no ‘proper’ or even ‘effective’ system of legal intelligence. The adequa-

cy of any aspect of legal control is not a scientific question” (Black 1973: 131). Still, in The Mobiliza-

tion of Law (1973), as well as in his works prior to and after that article, Black describes how the lib-

eral ideal – focusing on individual autonomy and equality before the law – is rather preserving the

social status quo and being beneficial for already well-established, high status groups in society. Re-

call, for instance, how Black analyzes law sociologically from a geometrical perspective. Hence,

crimes committed upwards – by citizens with low social status against citizens with high social status

– will attract more law than crimes committed downwards, and so forth.

What is important to remember is that for Black this exposure of social structural inequality, as a con-

sequence of disguised liberal ideology, is not to be viewed as groundbreaking sociological research.

Instead, Black views it as a well-known fact, and a very obvious one too. Black’s reluctance in pre-

senting this kind of social phenomena as scientific findings, together with his sharp criticism of the

Law and Society movement, has led some of his critics to the conclusion that Black denies the exist-

ence of such social inequalities. On the other hand, Black’s empirical point of departure – i.e. assum-

ing that social inequality, racism, sexism and imperialism occur inherently in the social and legal

structures of the modern Western societies – bears resemblance to critical theory traditions. And these

are traditions that Black, of course, rejects (Black 1972: 1086, 90).

According to Bishop, critical thinkers believe that both natural scientific and descriptivist approaches

deny or ignore the moral commitments or ideological beliefs coming from the investigator herself.

Furthermore, critical thinkers also believe that aforementioned traditions lack the capacity to fully

3 Legal intelligence: ”the knowledge that a legal system has about law violations in its jurisdiction” Donald J.

Black, 'The Mobilization of Law', The Journal of Legal Studies, 2/1 (1973), 125-49 at 130.

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explore some of the most interesting features of human action. (Bishop 2007e: 58 pp.) Bishop points

out some flaws of critical theorists, such as their use of the same kind of formalist methodologies as

the traditions they are criticizing. For instance, there is, according to Bishop, a common tendency

among critical thinkers to aim for value-neutral objectivity, contrary to the philosophy of science they

advocate (Bishop 2007e: 61-62). Bishop also reminds us that critical theory stems from Marxian

thought (Bishop 2007e: 58). But at the same time Bishop fails to acknowledge the paradox in marry-

ing the Marxian concept of historical materialism with the critical thinkers’ focus on human self-

interpretation and ethical evaluation. Marx rejected such Hegelian idealism. In that respect, Black’s

subtraction of the human subject from his theory construction is actually more coherent with Marxian

materialism than the Marxist critical thinkers themselves.

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4 Donald Black’s Philosophy of Science Reading Black, I have more than once reflected on the peculiar mix between anti-hierarchical, anti-

liberal, and anti-psychological elements with an almost ascetic striving for scientific purity, simplicity,

universality, and comprehensibility. As could be expected when someone refuses to take an explicit

ideological stand, the classifications of Black’s political affiliation are all over the place. “Black’s a

radical!”, Black’s a conservative!”, “Black’s a nihilist!”. For a (very short) while I myself considered

Black as a disguised Marxist, working in Althusser’s materialist, anti-humanist tradition. These are all

guesses and Black, in line with his own preaching, carefully avoids all intellectual traps that might

lead to him confusing political conviction and value judgments with science.

Perhaps this is also the reason to why Black rarely speaks about philosophy other than in rather conde-

scending terms. “[Moral] philosophy is an oddity in the real world of action, a quaint remnant of the

nineteenth century, something for the undergraduate” (Black 1972: 1091). For Black, and I tend to

agree at least partly, philosophy is metaphysics and not science. “Sociology is a scientific enterprise

and, as such, can be distinguished from moral philosophy, jurisprudence, or any other normatively

oriented study – in other words, that the study of facts can be distinguished from the study of value”

(Black 1972: 1093). For Black, philosophy is too intertwined with values, and values are too inter-

twined with policy-making. Black is not interested in policy-making and, therefore, refrains from em-

barking on philosophical adventures.

Set against the background of what has been said so far regarding Black’s epistemology; it becomes

hard to pin down Black’s philosophy to the different philosophical traditions covered very thoroughly

by Bishop his book. Black is decidedly not an advocate of the liberal-leaning traditions; neither is he a

supporter of critical theory. He is openly hostile against all kinds of value judgments and subjective

positioning on behalf of the social scientist. So how can we describe Black’s philosophy of science? Is

it even possible to categorize him?

4.1 Philosophical Anarchism However, the attentive reader of Black’s articles will find a few clues regarding his philosophical

origin.

“As a rule I do not personally find the policy criticisms and proposals of legal sociologists

to be particularly objectionable, the exception being those proposals that increase the pow-

er of the government to intervene in citizens' lives...In fact, I align myself more broadly and

precisely in the philosophical tradition of anarchism. For me, the validity of law is at all

times contingent upon my own assessment of its moral validity, and thus I recognize no a

priori legitimacy in the rule of law…[The] government often finances...research on its own

effectiveness. It is my view that the confusion of fact and value operates as a form of mysti-

fication that helps to keep the established order intact. Nevertheless, I do not wish to use

my status as a scientist to promote my political philosophy.” (Black 1972: Endnote 23,

1092)

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Together with Mary P. Baumgartner, Black published his perhaps most policy-oriented article (Black

and Baumgartner 1987). It deals with the possibilities of “depolicing” society, here with a reference to

the anarchist Petr Kropotkin:

“With the growth of law and the police - an evolutionary process involving many varia-

bles…the citizenry becomes increasingly dependent upon the state to define and maintain

order.

As this happens, people increasingly cease to take responsibility for their own security and

dispute settlement, for instance, or to help others with matters of this kind. Waiting for the

police to arrive, they may even stand by passively as an assault or other victimization takes

place. Each expansion of police and other legal protection thus results in a new and higher

level of need for these very services, leading to their ever escalating proliferation.

A classic analysis of this pattern was made by Kropotkin at the turn of the century” (Black

and Baumgartner 1987: 34; Kropotkin 2006)

About the alleged increasing public dependence on the state and the police, Black and Baumgartner

write:

“It is partly this dependence that explains why an increase in the number and power of po-

lice is usually seen as the solution to problems of public order. Cutting back on the police -

or depolicing - is almost never considered as a way to ameliorate these problems.” (Black

and Baumgartner 1987: 34)

In a 2002 interview Black explains his concept “legal minimalism” – the reduction of law to a mini-

mum:

“Legal minimalism is a strategy of legal reform with various possible applications. It em-

ploys my sociological theory of law, so in this sense it is a form of sociological anarchism.

It is a planned shortage of law. Unlike traditional anarchism as a political movement, legal

minimalism is a matter of degree… The oldest recipe for better law reads as follows: To

improve law, add more law. Is law unjust or ineffective? Then give legal officials more

power and use law still more than before. Introduce new legislation, new grounds for law-

suits, new penalties, and so on. Legal minimalism involves precisely the opposite strategy.

It destroys law as a means of legal reform… [The] reduction of law does not necessarily

entail an overall reduction of social control. It may even stimulate new forms of social con-

trol that are more frequent and severe than law. What happens depends on the social loca-

tion where law is reduced.” (Black 2002a: 116-17)

Crystallizing from these quotes is an explicit philosophical but also ideological conviction on behalf of

the anti-philosophical and anti-ideological Donald Black. Clearly, Black here expresses being for

something as well as being against something else – he makes a value judgment. Still, he avoids being

outwardly political and settles for anarchism of the philosophical and sociological kinds. Bishop does

not mention philosophical anarchism in his book, hence the difficulty in pinpointing Black to a partic-

ular philosophical tradition accounted for by Bishop.

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A prominent figure within philosophical anarchism is the American political philosopher and profes-

sor emeritus at the University of Massachusetts Amherst, Robert Paul Wolff. Wolff’s In Defense of

Anarchism (1970) is considered a classic within theoretical anarchism (Wolff 1970).

“[With] Robert Paul Wolff’s In Defense of Anarchism, the aim was to show what political

philosophy cannot do – namely, reconcile the demands of political authority with those of

personal autonomy. The ‘just state’, Wolff concluded, ‘must be consigned [to] the category

of the round square, the married bachelor, and the unsensed sense-datum.’…The philo-

sophical anarchist, according to Wolff’s account, is far different from the bomb-throwing

anarchists of lore and the window-smashing, anti-World Trade Organization anarchists of

recent days…[There] is nothing in the philosophical anarchists’ appearance or actions to

distinguish them from conventional, law-abiding citizens. The difference lies in their re-

spective attitudes to authority and law. The philosophical anarchist and the conventional

citizen both will obey the law in most circumstances, but they will obey it for different rea-

sons.” (Dagger 2000: 391-92)

From the perspective of philosophical anarchism, Black’s epistemology suddenly makes sense for

someone desperately trying to afflict his theories to a philosophical context. There is an ethos, but not

one of “Bishop’s ethea”. The critique against philosophical liberalism is consequently present in

Black’s thought as it is a common critique within philosophical anarchism. For instance, in his critique

of John Rawls – the household god of liberal philosophy – British philosopher Alan Carter departs

from an anarchist philosophical starting point. Carter concludes that Rawls did not succeed in explain-

ing the relation behind liberalism and political compliance, thus making a case for anarchism against

liberalism (Carter 2006a, 2006b).

Another contemporary philosophical anarchist is American professor in both philosophy and law, A.

John Simmons, active at University of Virginia (which also happens to be the academic home of Don-

ald Black). With reference to Simmons, Windeknecht describes philosophical anarchism as follows.

“[The] anarchist position that is ‘not just distinctive and initially plausible, but also cor-

rect,’ is a posteriori, weak anarchism that accepts the balance-of-reason approach…Thus,

what distinguishes philosophical anarchism from other anarchist positions is that illegiti-

macy does not entail a strong, absolute duty of opposition. Despite its illegitimacy, there

may be reasons for not opposing the state, for instance, if its laws prohibit wrongful acts.

All things considered, the anarchist cannot plausibly argue that he always ought to oppose

the state…[The] philosophical anarchist must allow for at least the possibility of a legiti-

mate state, otherwise he risks arriving at potentially odd and embarrassing conclusions –

like the a priori anarchist, who appeals to voluntarism, but is forced to reject even an ideal

state that is founded in a genuine act of consent.” (Windeknecht 2012: 176)

In other words, the philosophical anarchism described here represents a relatively sober and pragmatic

kind of anarchism, free from its most distinctively pronounced dogmatism and radical activism. It fits

Donald Black like hand in glove.

13

5 Conclusions Is the work of Donald Black value-neutral and free of ideology? No. But Black hides the ideological

presence in his works well. For someone not familiar with philosophical anarchism it is particularly

hard to identify the philosophical values behind Black’s thought. Bishop constantly refers to value-free

philosophy of science as disguised liberal ideology (Bishop 2007d: 109). But Bishop never really ad-

dresses any disguised alternatives to the liberalism, which explains perhaps why Black manages to

somewhat cruise under the ideological radar.

Black is pragmatic and does not advocate any system of social control as more preferable than any

other, thus expressing a philosophical anarchist value – namely, that law is neither superior nor inferi-

or to any other systems of social control. Hence, Black is representing the “weak anarchism” of Sim-

mons that Windeknecht refers to (Windeknecht 2012). As a philosophical anarchist, Black is not nec-

essarily objecting to the concerns or motives of socially engaged liberals. It is the liberal cure – more

law to solve legal problems – as well as their, in Black’s mind, unscientific methods for doing re-

search, which he objects to.

5.1 Towards an Anarchist Sociology of Law? Anarchist or not, from the first time when I read Donald Black I was intrigued by his broad definition

of law simply as governmental social control (Black 1972: 1086). Black’s irreverent description of the

state of sociology of law is refreshingly clear and honest, although naturally not without flaws. A gen-

eral theory such as, for instance, Black’s pure sociology will always be just that: general – a one size

fits all solution. Still, the non-hierarchical, anarchist approach towards the study of law and social

structures is managing, not only to “over-gap the gap problem”, but also to declare obsolete the prob-

lem of discrepancy between law in books and law in action. In doing so Black aims beyond sociology

of law’s limiting obsession with “mission: improving law”. Furthermore, by aiming towards a hard-

core generality in his theory of sociology of law, Black enables a holistic study of social control – all

social control. The fact that he does not fit into Bishop’s moulds, or that he has been labelled anything

from radical to conservative, tells us something about his uniqueness as a scholar. Not necessarily

always right, but one of a kind for certain.

i

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--- (2007b), 'Methodological Holism and Methodological Individualism', in Robert C. Bishop (ed.), The Philosophy of the Social Sciences - An Introduction (London: Continuum International Publishing Group), 150-67.

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ii

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