Resistance to Innovation in the Sociology of Law: A Response to Greenberg

Abstract

The conventional understanding of law in everyday life gives a central place to legal rules. In this view-held by most lawyers as well as laypersons-legal cases come into being because someone's conduct has apparently run afoul of one or more legal rules, and cases are solved when the correct rules have been applied. The conventional approach also makes much of human motives, those of offenders, other citizens, and legal officials. These elements of conventional thought about law-rules, conduct, and psychology-have characterized much of the sociology of law as well. Because of their tendency to accept what are essentially folk conceptions of law, sociologists for many years failed to generate their own theory of the legal process. The critique of Donald Black's innovative theory of law in the present issue of this journal, written by sociologist David Greenberg, dramatically illustrates conventional thought and its pitfalls. While his theory is not the only alternative to the conventional view of law, Donald Black has developed the most systematic sociological approach now available. Black does not use legal rules to explain behavior but treats these rules as among the problems to be explained. Nor does Black invoke an eclectic melange of common-sense variables, such as legal rules, individual psychology, and the conduct of offenders, to explain the nature and application of the law. Instead, he has created a distinctively sociological theory of law in which variation in legal life is related to its location and direction in social space. Black's theory does not conceive of law as a phenomenon sui generis but orders, predicts, and explains law as an instance of social behavior. Furthermore, Black states his * I am grateful to M.P. Baumgartner, Donald Black, Mark Cooney, and Calvin Morrill for providing me with numerous helpful suggestions for revisions in an earlier draft of this paper.