Talk:Donald Black (sociologist)

Undue Censorship of Criticism

I wrote a criticism section which, unlike any other part of this article, has intext citations. It was deleted by someone for reasons that are not completely clear. Below I have copied and pasted the section of the history that deleted my contribution: (cur) (last) 02:39, 13 July 2007 66.218.56.108 (Talk) (5,111 bytes) (→Criticism - inapprop to inc criticism of person; no one criticizes the person - and crit was copied verbatim from its approp location, in Pure Sociology article) (undo)

If the criticism section deserves to be deleted, please defend that argument here.

RedHouse18 22:03, 18 July 2007 (UTC)

Ideas

The clarification of "ideas" is much better - not redundant now, good edit. KillerChihuahua 13:52, 5 December 2005 (UTC)

Criticism of Donald Black

This was taken from Wikipedia:Articles for creation/2006-01-12#Criticism of Donald Black, created by User:61.1.24.94. I added it here because it doesn't seem like it should have an article of its own. If any of it is accurate, somebody more knowledgeable about this person can add it in. -- kenb215 talk 19:56, 6 January 2007 (UTC)

INTRODUCTION

Our contemporary theorists are standing on the shoulders of the giants of sociology, but they are in turn expanding the horizons of our discipline at the macrostructural, microinteractional and interpretive levels of analysis. Our contemporary sociology is characterised by a confusion of science and policy. A scientific analysis does not or should not involve any emotional part of the investigator, but when legal sociology is presented in a scientific language the normative considerations become subtly applicable.

In my article I have made an attempt to discuss ‘ The Boundaries of Legal Sociology’ by one of the Masters of Sociology of law and its founding thinker Donald Black, who essentially construed and contributed in its development.

Donald Black tried to explain the nature and aims of a pure sociology of law. He said that the study of sociology of law must engage and include in itself the empirical aspects.

I have divided the article into the following parts:- 1). About Donald Black 2). Explanation of the Article into IV parts 3). Criticism of the Article in the light of reasons given by Philip Nonet 4). Conclusion

ABOUT DONALD BLACK

Donald Black is a theoretical sociologist with numerous publications in the sociology of law, morality and conflict. Black's work has increasingly expanded to include projects as a theory of the differential success of ideas, a theory of scienticity, a theory of scientific theory, and a theory of the behavior of supernatural beings such as God. Black is the founder of pure sociology, a sociological paradigm that includes no psychology or even people. His most recent book, The Social Structure of Right and Wrong, was awarded both the 1994 Theory Prize and a Distinguished Book Award of the American Sociological Association. He also authored The Behavior of Law, The Manners and Customs of the Police, and Sociological Justice. A recent article, "The Epistemology of Pure Sociology," which was published in 1995 in Law & Social Inquiry, won a Distinguished Scholarship Award from the American Sociological Association1. After completing his doctorate at the University of Michigan in 1968, Professor Black pursued postdoctoral studies as a Russell Sage Fellow in Law and Social Science at Yale Law School, and continued at Yale University with appointments in both the Law School and the Department of Sociology. In 1979 he moved to Harvard University, where he again held appointments in both the Law School and the Department of Sociology. He came to the University of Virginia in 1985, where he has occasionally taught in the Law School as well. His University Professorship entitles him to teach in any school or department of the University. Donald Black, at present is the University Professor of the Social Sciences at the University of Virginia. He often serves on the editorial board of scholarly journals, and edits a series of books called "Studies on Law and Social Control" for Oxford University Press. He has been invited to lecture in numerous countries abroad, including Sweden, Denmark, Finland, Holland, France, Scotland, England, Poland, and Japan. In “The Boundaries of Legal Sociology,” Donald Black argues for the positivist “Scientific analysis of legal life” that would result in “a general theory of law, a theory that would predict and explain every instance of legal behaviour” EXPLANATION OF THE ARTICLE:

THE BOUNDARIES OF LEGAL SOCIOLOGY

Donald Black is a positivist and he wrote the article ‘ The Boundaries of Legal Sociology” in 19722. This article has been divided in IV parts, which have been discussed below.

PART I

Black here tries to explain what he thinks about the contemporary sociology and what he calls as pure Sociology. To write on law and society is to respond to two crises: crisis in law and crisis in social theory, both are consequences of the reaction against enlightenment rationality. Contemporary jurisprudence has been marked by a series of movements to deconstruct or salvage law and legal theories. Ever since law and legal theory were subject to question and critique by the legal realists at the beginning of the twentieth century, legal institutions, legal consciousness and the study of law have been in crisis. The legal Sociologists try to make an attempt to mark the boundaries of i.e. beginning and end of Legal Sociology. As the task is difficult, there are always debates within that whether it should have a scientific or empirical Sociology of Law or should it be more theoretical and Philosophical. The two most important questions that always open up debates within Legal Sociology are regarding the Structure of Sociology of Law and How to study it ? What methods should be adopted by the Sociologists of law to study it ? i). What should be the scope of the discipline ? ii). What is the method adopted ? Black says that Legal Sociology is mostly presented in a scientific manner, specifically in language and tone, but the normative considerations are implied in it. The ideology of the sociologist overpowers the scientific aspect involved in it. He says that a purely sociological approach to law should not involve assessment of legal policies keeping in mind what is just or what ought to be, but it should be scientific analysis of the Legal behaviour. He offers a general theory of law, which would incorporate every aspect of legal behaviour. He also contends that the achievement of such a theory, may be a utopian idea but every sociologist must try to achieve it. The problem faced by every policy making are problems of value or value considerations. Thus, in this article the nature and aims of a pure sociology have been discussed.

PART II

Legal Sociology tries to answer the question that how does law affects society and behaviour of human beings. This can be said in a single word Legal effectiveness. How effective is the law in restricting and curtailing human behaviour ? There are three dimensions of Legal effectiveness :

1. Implementation: How well is a law implemented ?
2. Impact: What is the impact of a law in the Society ?
3. Comparison between the Legal Ideal and Legal Reality: What is law in action and what is it in theory?

The Miranda Case: (Mirinda Vs State of Arizona)

Early in 1963, an 18- year old woman was kidnapped and raped in Phoenix, Arizona. The police investigated the case, and soon found and arrested a poor, and mentally disturbed man. The name of this man was Ernesto Miranda, a name that would become well known in American constitutional studies. Miranda was 23 years old when he was arrested. He confessed that he had kidnapped and raped the young woman after only two hours of questioning. By confessing to the crime, Miranda was convicted for kidnapping and rape. However, when Miranda was arrested he was not told his rights that are stated in amendment number five. On appeal, Miranda’s lawyers pointed out that the police had never told him that he had the right to be represented by a lawyer, and that he could remain silent if he wished to do so. In addition, he was not told that everything that he said could be used against him. In the end of 1966, the United State’s Supreme Court gave support to the defendant side by only a 5-4 majority. The Supreme Court decision detailed the principles governing police interrogation. In addition, they decided that the police have to make certain points clear for the accused before questioning and suspect. The Miranda versus the state of Arizona would detail the principles governing police interrogation, and protect the rights and the privileges of the people in the United States of America. Accused and arrested people in the United States of America are enjoying too many rights and privileges. As shown in the Miranda case, a person may get away with no punishment, even if the accused confesses to the crime, if the police do not read that person his five rights and privileges that are supposed to ensure the due process of the law stated in Amendment number five in the American constitution. Now Black says that the implementation of such a decision can be questioned and researched. In such cases the impact might be very difficult to measure. Legal effectiveness is helpful for people to reform legal order if there is a wide gap between the law in theory and law in action. But again this can be precarious as it may at each step involve the moral judgement of the investigator.

PART III

Each and every problem can be solved if a proper technique is applied to it. All that works can be learned through Science. In the world of today every social controversy is dominated by the scientific thought, whether the use of drugs should be legalized or not. The rationality of each policy is thought of before enforced. Moral problems of every sort are translated into problems of science and knowledge and practical solutions are then searched. Thus Donald Black contends that Sociology of law must engage and include in it self the empirical aspects.

PART IV

Black says that sociology is a scientific enterprise and thus can be distinguished from moral philosophy or any normative oriented study i.e. to say that the facts are different from values. Max Weber4 said that intrusion of values occur at various stages of social science. For example at the first stage of scientific enquiry which can be the choice of the problem. But what a sociologist can do is that after the selection of a problem he should be pursued non-evaluatively. But Black goes a step further and says that bias is thus built inherently into the foundation of social sciences. Thus value judgement at the time of selecting the problem may also affect its scienticity. But the fact that scientific statements are influenced by the value does not make them value statements, because they are verified and proved empirically. Value may affect social sciences but that should not be the reason to abandon the concept of empirical sociology of law. Black is an empiricist. Empiricists claim knowledge is a product of human experience. Statements of observations take pride of place in empiricist theory. Naïve empiricism holds simply that our ideas and theories need to be tested against reality, and accepted or rejected on the basis of how well they correspond to observed facts.

PART V

Black describes law as governmental social control. It is a concept easily employed in cross societal analysis, encompassing any act by a political body that concerns the definition of social order and excludes social order as a sense of morality. Law is essentially a social control system.

PART VI

In the end, Donald Black says that the quality of applied science depends on the quality of pure science. Today what is useful is the being of a pure sociology of Law and its being there does not solely depend on its usefulness, but it should be scientific and verifiable today because then only will it have its application.

CRITICISM OF BLACK

The Blackian perspective of a pure sociology has been challenged by basically 2 thinkers i.e. Philippe Nonet5 and R. Cotterrell6. Following were the bases of criticism offered :

• Sociology of law must have redeeming value for policy.

It is said that any kind of theoretical work yields very less. Thus we should not and cannot make value judgements irrelevant in the society .

• Sociology of law must integrate policy analysis.

Black argues that to research on a law that is already clear on the part of the decision is applied science. And thus it retreats from major scientific responsibility of policy research, it has to clarify a purpose. Black says that a sociologist should ignore the purpose of the policy he evaluates, but this would sterilize the research.

• Pure Sociology cannot mean what it says.

Black has not defined what is the need of such purification. What are the standards of such purity have also not been defined. One cannot remain free from behaviour or bias of any kind.

• Complete neutrality is impossible.

No one can eradicate the bias, subjectivity and value orientation. Research is often subjective. Researchers always have their own motives, goals, ethics and values, some deeply unconscious, and it is thus nearly impossible to be a completely objective observer. A bias is a prejudice in a general or specific sense, usually in the sense for having a predilection to one particular point of view or ideology. One is said to be biased if one is influenced by one's biases. A bias could, for example, lead one to accept or not-accept the truth of a claim, not because of the strength of the claim itself, but because it does or does not correspond to one's own preconceived ideas. A context of jurisprudence has to be present in sociology.

• The study should be intredisciplinary.

It would seem at this point that the only way to generate results that would explain the major causes of social phenomena would be to utilize variables from all relevant disciplines. Even in their advanced form, studies are still in correlational mode. They are only preliminary to building models of process. If we want to understand suicide well enough to prevent it, we will need an approach that can combine economic, social, and psychological vectors into a single dynamic system. If the determination to keep sociology pure does not advance our understanding of the real world, what other function could it serve? As it is said ‘Purity is the enemy of change, of ambiguity, and compromise’7. This is a kind of conservative approach.

CONCLUSION

A variety of new theoretical paradigms have emerged, challenging the mainstream quantitative, empiricist, and positivist conceptions of social theory and social research. The new paradigms, such as phenomenology, ethno-methodology, structuralism, and hermeneutics have provided new ways to examine and analyze social practice and social issues, but none of them has successfully replaced the prevailing positivist social theories and social research. The consequence is that twenty-first century studies of law and society, with whatever orientation or perspective/approach, must be mindful of a number of distinctive but intertwined challenges: the critical, hermeneutical, postmodern, global and plural. Black basically argues 4 things :

1. Pure sociology
2. Value Neutrality
3. Legal Effectiveness
4. What is Law ? Governmental social Control.

But, what ever Black argues cannot be fully relied on and because one cannot exclude dimensions of critical theory and only include empirical theory. Today, although most sociologists would agree that scientific method is an important part of sociology, extreme positivism is rare. Social scientists realize that it is extremely hard to create a law that would hold true in all cases when human behaviour is concerned, and that often while behaviour of groups may be sometimes explained and predicted with some probability, it is much harder to explain the behaviour of each individuals. In some quarters of contemporary sociology, positivism has been replaced by a contrary view, antipositivism. Most sociologists today operate somewhere between positivism and antipositivism, arguing that human behavior is more complex than animal behavior or the movements of planets. Humans have free will, imagination and irrationality, so that our behavior is at best difficult to explain by rigid "laws of society".

Sources

• Bodenheimer Edgar,JURISPRUDENCE, PHILOSOPHY AND METHOD OF LAW, Revised Edition, pg- 379
• Brian Z Tamnaha, REALISTIC SOCIO-LEGALTHEORY, Clarendon Press Oxford, 1997
• Black’s Law Dictionary
• http://en.wikipedia.org/wiki/Social_positivism
• http://en.wikipedia.org/wiki/selffulfilling_prophecy

61.1.24.94 18:31, 11 January 2006 (UTC)