A Study of The Behavior of Law (Michael R. Gottfredson and Michael J. Hindelang, 1979)

A Study of the Behavior of Law
Author(s): Michael R. Gottfredson and Michael J. Hindelang

Source: American Sociological Review, Vol. 44, No. 1 (Feb., 1979), pp. 3-18
Published by: American Sociological Association
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AMERICAN SOCIOLOGICAL REVIEW
A STUDY OF THE BEHAVIOR OF LAW*
MICHAEL R. GOTTFREDSON MICHAEL J. HINDELANG
State University of New York, Albany State University of New York, Albany
American Sociological Review 1979, Vol. 44 (February):3-18
In The Behavior of Law, Black (1976) sets forth a theory of law that he argues explains
variations in law across societies and among individuals within societies. Black argues that law
can be conceived of as a quantitative variable, measured by the number and scope of
prohibitions, obligations and other standards to which people are subject. Law varies,
according to Black, with other aspects of social life, including stratification, morphology,
culture, organization, and social control. Many of Black's principal propositions regarding the
quantity of law are tested in this paper with National Crime Survey data on the victim's decision
to report a crime to the police. An alternative model that views the quantity of law as depending
largely on the gravity of the infraction against legal norms is posed and tested against Black's
theory. The data are generally inconsistent with the propositions derived from The Behavior of
Law and strongly suggest that a theory attempting to explain the criminal law cannot ignore the
gravity of the infraction against legal norms.
Introduction
The Behavior of Law (Black, 1976) has
been referred to as a "crashing classic"
(Nader, n.d.) and the most important con-
tribution ever made to the sociology of
law- "that and more" (Sherman, 1978).
Although Black's theory has also been
criticized as "circular" (Michaels, 1978),
it is apparent that it will be the stimulus for
a great deal of research in coming years.
This is so because Black's theory of law is
stated in explicit propositional form and
because he sees the theory as applying to
so many aspects of law (e.g., both crimi-
nal and civil) and at so many levels of
analysis (e.g., individual level, community
level, and societal level).
Black defines law as "governmental so-
cial control" (1976:2) and argues that law
is a quantitative variable that varies across
time and space as well as across char-
acteristics of individuals:
. . . the quantity of law is known by the
number and scope of prohibitions, obliga-
tions, and other standards to which people
are subject, and by the rate of legislation,
litigation, and adjudication.... Any initia-
tion, invocation, or application of law in-
creases its quantity. . . (1976:3)
According to Black, the quantity of law
varies with other aspects of social life:
stratification, morphology, culture, orga-
nization, and social control. In connection
with each of these dimensions Black sets
forth a series of propositions that he
argues explain variations in law across
societies and among individuals within a
given society (1976:6-7).' For example,
"law varies directly with rank [e.g., in-
come]. . . . People with less wealth have
less law. They are less likely to call upon
the law in dealing with one another"
(1976:17). In this paper we will examine
many of Black's propositions, empirically
test their predictions, and discuss the im-
plications for the sociology of criminal
law.
*
Address all communications to: Michael R.
Gottfredson; Criminal Justice Research Center; One
Alton Road; Albany, NY 12203.
I
Black discusses "styles of law" as well as quan-
tity of law. The styles include penal, compensatory,
therapeutic and conciliatory (Black, 1976:4-5). Be-
cause of the nature of our data, we will limit our
discussion to penal (criminal) law.
3
4 AMERICAN SOCIOLOGICAL REVIEW
The task that Black (1976:7) sets for
himself is to illustrate a strategy for the
construction of sociological theory that
.. . predicts and explains social life with-
out regard to the individual as such. It
neither assumes nor implies that he is, for
instance, rational, goal-directed, pleasure
seeking, or pain avoiding." Black is par-
ticularly concerned about avoiding expla-
nations that rely on individual motivation.
For example, he argues repeatedly that
both the theory of law and "the theory of
illegal behavior" explain the same facts
(e.g., the crime rate).
The theory of illegal behavior, however, ex-
plains these facts with the principles that
motivate an individual to violate the law....
The theory of law predicts the same facts,
but as an aspect of the behavior of law, not
of the motivation of the individual. (Black,
1976:9)
As a consequence of this macrotheoretical
approach, Black is careful to avoid expla-
nations or propositions that rely directly
upon variations in the behavior of indi-
viduals. He argues that the behavior of
law, in all respects, can be explained by
social structural variations and by the
relative social structural positions of the
actors (e.g., the victim and the offender),
without reference to how the nature of
individual behavior affects the behavior of
law.
One of the major difficulties facing
those who would test Black's theory of
law is that he is not explicit about how the
objective seriousness of the offense
should be handled. Contrary to the tradi-
tional sociological use of the term serious-
ness, as incorporating the consequences
of acts to individuals, such as bodily in-
jury or financial loss (see Sellin and
Wolfgang, 1964), Black defines the seri-
ousness of infractions by the amount of
law that they evoke. Thus, Black argues
that "[i]f a poor man commits a crime
against another poor man, for example,
this is less serious than if both are
wealthy. Less happens . . .," and that
"the more organized the victim of a crime,
for instance, the more serious is the of-
fense" (Black, 1976:17,95). For Black
(1976:9), ". . . the seriousness of deviant
behavior is defined by the quantity of law
to which it is subject." What this implies,
therefore, is that Black's entire theoretical
framework is designed to account for the
quantity of law without including the con-
sequences of the deviance to the victim as
a dimension of the theory. This is so be-
cause the quantity of law is Black's de-
pendent variable-a quantity that varies
as a function of stratification, morphol-
ogy, culture, organization, and (nonlegal)
social control-and, thus, "seriousness"
is not defined apart from the dependent
variable itself. Hence, Black does not use
seriousness in its traditional sense to ex-
plain variations in the quantity of law.
None of the formal propositions presented
incorporates harm to the victim as a con-
sideration, and never is variation in litiga-
tion, arrest, prosecution, or sentencing
accounted for by Black in terms of varia-
tion in conduct.
Although Black frequently uses such
phrases as "all else constant" (e.g.,
Black, 1976:28,47,114) when stating a
theoretical proposition, such qualifica-
tions can reasonably apply only to vari-
ables included in the theory. If "all else
constant" can refer to variables not incor-
porated by the theory then the theory
must be rejected as untestable. If "all
else" is limited to dimensions and prop-
ositions formally specified by Black, then
the consequences of legal infractions to
individuals must be considered by Black
to be irrelevant in accounting for the quan-
tity of law. For example, in connection
with his stratification propositions, Black
(1976:31) notes ". . . that these principles
apply whatever the actual behavior of the
lower ranks-whether, for example, it is
more or less violent or predatory-since
their conduct is more likely to be defined
as illegal no matter what they do." On the
basis of such statements and the context
within which Black discusses his theory of
law, he must be interpreted as arguing that
the individual consequences of legal in-
fractions, such things as injury and mone-
tary loss, are not an important considera-
tion in explaining the behavior of law. At a
minimum, he must be interpreted as argu-
ing that the individual consequences of
legal infractions, such as harm to victims
of crimes (seriousness of the offense in its
conventional use), are less important than
stratification, morphology, culture, orga-
A STUDY OF THE BEHAVIOR OF LAW 5
nization, and social control in determining
the behavior of law. An alternative to
Black's theory of law, therefore, is one
that explains the behavior of law as a func-
tion of the individual consequences of
legal infractions (such as harm to the vic-
tim) rather than as a function of Black's
five dimensions (and their associated
propositions). Our alternative model is
simply that the behavior of criminal law
depends primarily on what happens be-
tween the victim and the offender; the ex-
tent of harm suffered is the principal de-
terminant of the quantity of law.
The Data
Many of the propositions set forth by
Black can be tested using data available
from the National Crime Survey (NCS)
conducted by the Bureau of the Census
for the Law Enforcement Assistance Ad-
ministration. Because the methods and
procedures used in these victimization
surveys have been discussed in detail
elsewhere (U.S. Bureau of the Census,
1975; Hindelang et al., 1978), they will be
described only briefly here.
In these surveys, multistage cluster
sampling is used to select representative
samples of Americans twelve years of age
or older in order to ask them about com-
mon assault and theft victimizations that
they may have suffered during the six
months preceding the interview. In this
design about 130,000 persons are inter-
viewed twice per year. The data used here
are for crimes reported as having occurred
during 1974, 1975, or 1976. This paper is
limited to personal crimes in which there
was some actual contact between the vic-
tim and the offender-rape, robbery, as-
sault, and personal larceny (e.g., purse
snatch). Because of the complex sampling
design, data weighted to yield valid na-
tional estimates are used here. For these
years the mean weight is about 1,000.2
The victimization survey data are par-
ticularly well-suited to testing many of
Black's propositions because he explicitly
frames much of his discussion in terms of
criminal law examples, such as complaints
to the police, arrests, and prosecutions.
The victimization survey data not only
contain the requisite information Black
discusses about the victim (e.g., social
rank) and the offender (e.g., number of
offenders) but also contain the informa-
tion necessary to assess a variety of
ecological propositions set forth by Black.
Furthermore, one of the principal mea-
sures of the quantity of law discussed by
Black (1976:3) is complaint to the police:
A complaint to a legal official, for example,
is more law than no complaint, whether it is
a call to the police, a visit to a regulatory
agency, or a lawsuit. Each is an increase in
the quantity of law.
For the crimes of common theft and as-
sault, initiation of the criminal justice
process is almost exclusively in the hands
of the victim (Reiss, 1971; Hindelang and
Gottfredson, 1976). Because victimization
data include both crimes reported to the
police and crimes not reported to the
police, they permit an empirical assess-
ment of many of Black's propositions re-
garding initiation of the criminal law.
Consequently, most of this paper will cen-
ter on Black's propositions within the con-
text of the victim's decision about report-
ing the offense to the police. With the
victimization survey data it is possible to
assess propositions relating to each of
Black's five major dimensions. The first of
these is stratification.
Stratification
Black (1976: 1 1) defines stratification as
the "vertical aspect of social life,"
the
"uneven distribution of the material con-
ditions of existence, such as food and
shelter, and the means by which these are
produced, such as land, raw materials,
tools, domestic animals, and slaves." Ac-
cording to Black,
the quantity
of law var-
ies directly with social rank, and down-
ward law (e.g., a complaint by
a wealthier
man against a poorer man) is more likely
than upward
law:
In the case of a crime, for instance,
a victim
who is above the offender in rank is more
likely to call the police
than a victim whose
rank is lower than the offender's .... Hold
2
The weights reflect the inverse of the probability
of selection, adjusted for within-strata nonresponse,
among other factors. See U.S. Bureau of the Census
(1975) for details.
constant the offender's rank and wealthier
people complain more about everything. In
criminal matters, for instance, the likelihood
of a call to the police increases with the rank
of the victim. (1976:21, 27)
With the victimization survey data it is
possible to test this proposition by exam-
ining the extent to which reporting crimes
to the police varies as a function of the
social rank of the victim. Most research
literature indicates that offenders in
crimes of common theft and assault are
drawn disproportionately from lower
ranks. Because Black (1976:31, 30) stipu-
lates these findings (". . . criminality var-
ies inversely with rank . . . "), from his
stipulation and his proposition it follows
that the proportion of victims reporting
their victimizations to the police will in-
crease with the victim's rank. Table 1
shows the relationship between the vic-
tim's family income (Black's principal in-
dicator of social rank) and proportionate
reporting of victimizations to the police.3
In order to examine the effects of harm
to the victim on reporting to the police,
the data in Table 1 are tabulated also by
seriousness level as measured by the
Sellin-Wolfgang (1964) seriousness scale.
This seriousness scoring system was de-
veloped using a magnitude estimation
procedure and it is designed to take into
account the extent and nature of bodily
injury, weapon use, intimidation, forcible
sexual intercourse, and financial loss.4
Table 1 shows a substantial seriousness
effect; as the gravity of the victimization
increases so too does reporting to the
police. Contrary to Black's hypothesis,
however, there is little systematic variabil-
ity in rates of reporting to the police, as a
function of income. Collapsing across
seriousness level, the gamma for Table 1
between reporting to the police and family
income is -.017; within seriousness levels
the gammas range from -.037 to .110. On
the other hand, the gamma for the rela-
tionship between reporting and serious-
ness level (collapsing across income) is
.305. This effect is of similar magnitude
within income categories (gammas range
from .260 to .453). Clearly, Table 1 is not
consistent with Black's stratification pos-
tulate.
One need not accept the stipulation
made by Black regarding the inverse rela-
tionship between criminality and rank in
order to assess Black's stratification pos-
tulate with these data. A corollary to the
proposition tested above is that people
with less wealth are "less likely to call
upon law in their dealings with one an-
other . . . " (1976: 17). What this implies,
then, is that victimizations between per-
sons known to each other (and, hence,
likely to be similar in social rank) are more
likely to be reported to the police by per-
sons of higher rank than by persons of
lower rank. Respondents in the survey
were asked whether the offender was
someone known to them (a relative, a
good friend, or a casual acquaintance) or
was a stranger. The data presented in
Table 1 were analyzed separately for
crimes involving persons reported by vic-
tims to be nonstrangers. The results for
crimes between nonstrangers, shown in
Table 2, are parallel to those shown in
Table 1. For nonstranger victimizations
only, collapsing across seriousness, the
gamma between income and reporting to
the police is equal to -.102; within serious-
ness levels gammas ranged from
-
.110 to
.050. Thus, Black's prediction that people
with less wealth are less likely to call upon
law in their dealings with one another does
not find support in these data.
Another stratification hypothesis put
forth by Black (1976:15) is that wherever
people are more equal there is less law:
I
Victims were asked whether "the police were
informed of this incident in any way?" Those re-
sponding "no" or "don't know" were classified as
"no" for the purpose of this paper. "Yes" included
victimizations reported to the police by the victim or
someone in the victim's household, victimizations
reported by "someone else" and victimizations in
which the "police [were] on the scene." Virtually all
of the "yes" responses (95%) involved reports to the
police.
4
According to this method elements of the vic-
timization are scored for seriousness resulting in
seriousness scores that range from zero to 26. A
victimization resulting in a score of zero would be an
attempted crime in which no injury or loss was suf-
fered and in which no weapon was used. A score of
26 is indicative of a homicide, although homicide is
not among the crimes counted in the survey. Vic-
timization events are concentrated among the lower
seriousness scores (Hindelang, 1976: Chap. 6). In
order to have a sufficient number of (unweighted)
victimizations, four seriousness levels were used:
level 1 = O and 1; level 2 = 2 and 3; level 3 = 4 and 5;
and level 4 = 6 or more.
Table 1. Proportion of Victimizationsa Reported to the Police, by Seriousness Level and Family Income,
United States, 1974-1976b
Family Income
Seriousness Under $3,000- $7,500- $10,000- $15,000- $25,000
level $3,000 7,499 9,999 14,999 24,999 or over Total Gammac
1 37% 38% 42% 39% 39% 24% 38% -.037
(597,981) (1,074,219) (536,633) (1,020,397) (884,764) (314,841) (4,428,835)
2 38% 40% 41% 41% 36% 37% 39% - .022
(911,012) (1,613,392) (784,072) (1,551,184) (1,360,122) (520,612) (6,740,394)
3 45% 52% 54% 57% 54% 56% 53% .076
(648,790) (1,371,611) (601,848) (1,201,633) (925,056) (276,855) (5,025,793)
4 68% 74% 72% 80% 78% 72% 74% .110
(377,851) (615,133) (228,923) (355,202) (264,070) (100,547) (1,941,726)
Total 44% 48% 48% 48% 45% 41% -.017
(2,535,634) (4,674,355) (2,151,476) (4,128,416) (3,434,012) (1,212,855)
a
Includes rape, robbery, assault, and personal larceny.
b
Numbers in parenthesis are the weighted counts which serve as the base of the percentages.
c
Each gamma was computed from a 2x6 table (reported vs. not reported by income level). For example,
the gamma listed for seriousness level one reflects the relationship between reporting to the police and income
level, with level of seriousness controlled. The gamma listed for the Total row reflects the relationship
between reporting to the police and income level irrespective of seriousness level.
"there is less law among neighbors, col-
leagues, [and] friends.... Table 2 also
presents data useful in assessing this
proposition. Black's theory predicts that
crimes between strangers are more likely
than crimes between nonstrangers to be
reported to the police. An examination of
the percentage differences in proportions
reporting to the police crimes committed
by strangers vs. crimes committed by
nonstrangers for the cells of Table 2 re-
veals a mean difference of only 4% in the
direction predicted by Black.5
In addition to stratification effects at the
individual level, Black's theory of law is
equally applicable to variations in law ac-
ross aggregates. In relation to stratifica-
tion:
It is even possible to rank entire societies
among themselves, and also the areas of
society, its regions, communities, and
neighborhoods. This may be done either ac-
cording to the distribution of wealth among
the residents or according to the wealth of
the society or area itself. In the first case,
law varies with the proportion of the popula-
tion that is more or less wealthy. (Black,
1976:20)
By categorizing respondents in the
sample into "neighborhood" subgroups,
it is possible to examine variation in the
proportion of victims reporting their vic-
timizations to the police. For most victims
it was possible to obtain "neighborhood
characteristic" information. This informa-
tion is derived by the Bureau of the Cen-
sus through an aggregation process in
which census tracts are combined to form
larger units that are relatively homoge-
neous with respect to income, housing,
and population characteristics. The Cen-
sus Bureau's term, neighborhood char-
acteristic, is a misnomer because it con-
notes aggregates of contiguous census
tracts which is not necessarily the case.
Our use of these data, however, will be
limited to using the neighborhood char-
acteristics to categorize areas into more
homogeneous subgroups. It is primarily
the similarity of areas, for example in
wealth, rather than contiguity that appears
to be most relevant to Black's theory of
law.
Table 3 displays the percentages of sur-
vey victimizations reported to the police
by seriousness level and the proportion of
5In connection with the data reported in Table 2 it
is important to note that there is some evidence from
reverse record checks that victimizations between
persons known to each other are somewhat less
likely than victimizations between strangers to be
mentioned to survey interviewers (Law Enforcement
Assistance Administration, 1972: Table 5). The first
hypothesis tested with the data in Table 2 is unaf-
fected by this factor, because there is no evidence of
a differential in this bias as a function of income
level. The second hypothesis, contrasting strangers
and nonstrangers, is probably affected because
nonstranger victimizations are disproportionately
undercounted by the survey. This bias probably
works against Black's hypothesis.
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Table 3. Proportion of Victimizations Reported to Police by Seriousness Level and Ratio of Number of
Families in Respondent's Neighborhood with Annual Incomes under $5,000 to Total Families in
Neighborhood, United States, 1974-1976
Proportion of Families in Respondent's Neighborhood
with incomes under $5,000
Seriousness
Level 0-10% 11-20W 21-30W 31-100% Total Gamma
1 35% 37% 38% 37% 37% .023
(1,108,504) (1,524,432) (839,712) (745,554) (4,218,202)
2 37% 37% 41% 41% 39%W .047
(1,671,796) (2,297,852) (1,364,830) (1,185,060) (6,519,538)
3 54% 54% 56% 47% 53% -.051
(1,126,276) (1,641,788) (997,065) (989,873) (4,755,002)
4 75% 75% 73% 70% 73% -.069
(393,980) (608,400) (419,024) (506,002) (1,927,406)
Total 45% 46% 48% 46% .026
(4,300,556) (6,072,472) (3,620,631) (3,426,488) (17,420,147)
families within the victim's neighborhood
with annual family incomes of less than
$5,000. According to Black's theory of
law, as the proportion of families under
$5,000 increases, the rate of reporting to
the police decreases. Once again, even at
this level of aggregation, reporting is con-
sistently related to seriousness level
within each category of neighborhood in-
come level. There is, however, little sys-
tematic evidence to support the proposi-
tion derived from Black's theory of law.
In addition, when the data are regrouped
according to the percentage of all families
with an annual family income of $15,000
or more, the very slight effect in Table 3
changes to a trend of a similarly weak
magnitude opposite to that predicted by
his theory. In sum, areal stratification
does not produce findings of notable mag-
nitude nor findings consistently in the
direction required by the theory.
Morphology
The second dimension relevant to
Black's (1976:37) theory of law is mor-
phology:
Morphology is the horizontal aspect of social
life, the distribution of people in relation to
one another, including their division of
labor, networks of interaction, intimacy, and
integration. It varies across social settings of
every kind, whether societies, communities,
neighborhoods, or organizations. . . . One
village or tribe may have a greater division of
labor-more differentiation-than another
.... Some settings are intimate, others im-
personal. In some, nearly every one partici-
pates in everything) in others, many are
marginal or alone.
Morphology is a central dimension in The
Behavior of Law because of its implica-
tions for the degree to which people are
involved in each other's lives (Black,
1976:40). Black contends that law is in-
active among intimates and is used in-
creasingly as relational distance increases,
until the point at which people exist en-
tirely independently of each other, a point
rarely reached in modern societies. This
observation is embodied in the proposi-
tion that "the relationship between law
and relational distance is curvilinear"
(Black, 1976:41). Up to a point, Black
(1976:46) notes, a community's size is
predictive of its rate of litigation.
This derivation can be tested with the
victimization survey data by examining
the relationship between the size of the
community in which the victim resides
and the proportion of respondents who
told interviewers that they had reported
the victimization to the police. From the
victimization data it is possible to obtain
the size of the place in which the respon-
dent resided at the time of the interview.
These place sizes have been divided into
six groups as shown in Table 4. According
to Black's theory of law, as place size
increases, so too should the proportion of
victimizations reported to the police.
The data in Table 4 do not support the
hypothesis. At each seriousness level the
general trend is for the rate of reporting to
Table 4. Proportions of Victimizations Reported to the Police, by Seriousness Level, and Size of Place,
United States, 1974-1976a
Place Size
Seriousness Under 10,000- 50,000- 250,000- 500,000- 1,000,000
Level 10,000 49,000 249,000 499,999 999,999 or more Total Gamma
1 44% 37% 37% 34% 31% 32% 36% -.112
(546,280) (957,077) (970,599) (309,680) (457,445) (466,765) (3,707,846)
2 46% 38% 37% 33% 38% 38% 38% -.060
(792,968) (1,385,821) (1,395,100) (540,047) (730,028) (776,311) (5,620,275)
3 53% 57% 54% 49Wo 50o 54% 54% -.034
(629,018) (1,001,677) (980,465) (405,247) (505,470) (646,540) (4,168,417)
4 82% 73% 76% 70o 68% 72% 73% -.096
(201,721) (361,688) (345,854) (170,045) (238,581) (406,385) (1,724,274)
Total 51% 46% 45% 42% 43% 47% - .041
(2,169,986) (3,706,262) (3,692,019) (1,425,018) (1,931,525) (2.296,001)
a
Cases in which the place size has not been classified by the Bureau of the Census are not included in this
table.
the police to decrease as the size of the
place in which the respondent lives in-
creases.
Among morphological variables Black
includes radial location, the proximity of
individuals to the center of social life.
Employed persons are more integrated
than unemployed and married persons are
more integrated than single persons
(Black, 1976:48). The proposition related
to radial location is that "law varies di-
rectly with integration" (1976:48). From
this it follows that (other things being
equal), for example, persons who are un-
married and unemployed will have lower
rates of reporting to the police than will
persons who are married and employed.
To test this proposition, respondents were
categorized with respect to marital status
and employment status. For this purpose,
persons keeping house were categorized
as employed.6
Table 5 shows rates of reporting to the
police by employment status and marital
status. A comparison of proportions re-
porting their victimizations to the police
among those who were married vs. those
who were never married indicates that the
former are more likely than the latter to
invoke the criminal justice process. This
tendency is slightly greater for less serious
victimizations.7 Because Black views
married people as more integrated than
single people these results are consistent
with his radical location hypothesis. Em-
ployment status, a second indicator of so-
cial integration, however, is not consis-
tently related to reporting to the police in
the direction predicted by Black's theory
of law. Furthermore, to the extent that
being in school is viewed as being more
integrated than being unemployed, the
data are generally inconsistent with the
integration proposition.8 For example,
among persons who have never been mar-
ried, those in school were less likely than
those unemployed to report victimizations
to the police (e.g., seriousness level 1,
29%o vs. 35%).
Black also hypothesizes that the quan-
tity of law is related to population density.
The greater the density, the greater the
law. A density indicator available among
the neighborhood characteristics is the
ratio of the number of housing units in
structures containing five or more units to
the total number of housing units. Contrary
to his theory of law, there is a slight trend
for the proportion of victimizations re-
ported to the police to decrease as popula-
tion density increases (data not shown in
tabular form). For the least serious victimi-
6
The "other" category shown in Table
5
includes
retired persons and persons who were unable to
work. When tabulated separately "persons keeping
house" were found to have rates of reporting similar
to those of employed persons.
7
Because of the number of cells in relation to the
number of unweighted cases available, for this por-
tion of the analysis it was necessary to dichotomize
seriousness. Low seriousness includes Sellin-
Wolfgang scores 0 through 3 and high seriousness
includes scores of 4 or more.
8
Respondents were dichotomized into those
under 35 and those 35 and older and these findings
maintained.
0 oc
~~~ C~~~~l -
C-)~~~~~C
0)~ ~ ~ ~ ~~~0
CZ C ~ ~ ~ l C
Cu~ ~ ~
~~~C0
0)
t- 0U
~~~ '0)~ ~~0
c~~~ 0) ~ ~ 0
0'6C
"Cl
CZ
0)~ ~ ~~~~0 0
0~~~~~~~0 r
00 00
CZ
nations, 40% of victims residing in areas
with no housing units in structures con-
taining five or more units and 32% of vic-
tims residing in areas with more than 15%
of housing units in structures containing
five or more units, reported their victimi-
zations to the police. For the most serious
victimizations, the respective figures are
75% and 71%. Thus, among those mor-
phological propositions tested, only that
relating to greater reporting by married
than single persons received support.
Culture
The third dimension discussed by Black
(1976:61) is culture:
Culture is the symbolic aspect of social life,
including expressions of what is true, good,
and beautiful. It thus includes ideas about
the nature of reality, whether theoretical or
practical, and whether supernatural,
metaphysical, or empirical. . . . Culture in-
cludes aesthetic life of all sorts, the fine arts
and the popular, such as poetry and painting,
clothing and other decorative art, architec-
ture, and even the culinary arts.
Like stratification, culture varies among
societies and within societies among indi-
viduals. "An individual's culture depends
upon how many ideas he has, what he
wears, eats, makes, watches, and plays"
(Black, 1976:64). As an indicator of the
culture of individuals, Black uses educa-
tion. Whether on the individual or societal
level, "law varies directly with culture"
(Black, 1976:63). That is, for example,
"literate and educated people are more
likely to bring lawsuits against others"
(Black, 1976:64).
The left panel of Table 6 shows again
that the seriousness of the victimization is
closely related to reporting to the police.
Regardless of an individual's educational
level, more serious victimizations are
more likely to be reported to the police.
The victim's educational level (excluding
those still in school), as Black's theory
predicts, is directly related to reporting to
the police. The overall strength of this re-
lationship is, however, very weak. Col-
lapsing across seriousness, the gamma for
the relationship between individual educa-
tional level and reporting to the police is
.109 and within seriousness rows gammas
CZOUT o ~E?R
tndo
s~~~~~I EN rq x: g
V.
CZgOsm
e
;__ ~
c
tao
range from .190 for the least serious vic-
timizations to .063 for the second least
serious victimizations.
As with most dimensions in Black's
theory, culture is seen also as an impor-
tant predictor of variations in law across
areas. Once again, the neighborhood
characteristic data were used as an indi-
cator of the culture of areas. Specifically
the proportion of persons 25 to 54 years of
age who were college graduates to all per-
sons 25 to 54 years of age was used. The
right panel of Table 6 shows these areal
data. According to Black, as the propor-
tion of educated persons increases, so too
should reporting to the police. Contrary to
this expectation, there is a slight negative
association between areal education and
reporting to the police (gamma
=
-.112);
within the seriousness rows the gammas
range from -.122 to - .062. In sum,
Black's cultural propositions are neither
consistently nor strongly supported.
Organization
Organization is the corporate aspect of social
life, the capacity for collective action. This is
found in any group, whether a couple or a
gang of playmates, a club, family, or firm, a
political party, municipality, or state. But
some groups are more organized than others.
... A society may be more or less organized.
. Even one individual may be more
organized than another-as measured by his
memberships. Finally, any group is, by
definition, more organized than an individual
on his own. (Black, 1976:85, 86)
The first proposition related to organiza-
tion is that "law varies directly with orga-
nization" (Black, 1976:86). Parallel to the
stratification proposition that downward
law is greater than upward law, Black
(1976:92) argues that "law is greater in a
direction toward less organization than
toward more organization." This implies
that a collectivity is more likely to litigate
against an individual than vice versa. In
connection with criminal offenses, for
example, "the police are more likely to
hear about a robbery of a business than a
robbery of an individual on the street"
(Black, 1976:95).
To this point the use of victimization
data has been restricted to personal
crimes, but because the National Crime
Survey includes a survey of a national
probability sample of business establish-
ments it is possible to compare reporting
rates according to whether the victim was
an individual or an organization. In sup-
port of Black's hypothesis, the data indi-
cate that although about one-half of the
robberies of individuals are reported to
the police, more than four out of five rob-
beries of business establishments are re-
ported to the police.
Black also conceives of organization as
applying to individuals and to collections
of individuals. Black considers two or
more individuals, by definition, to be
more organized than a single individual.
As noted above, Black puts forth the
proposition that "law is greater in a direc-
tion toward less organization" (Black,
1976:86). If victims of personal crimes are
dichotomized into less organized (single
individuals) and more organized (two or
more individuals) and offenders are simi-
larly dichotomized, Black makes an
explicit prediction regarding the rank-
order of the resultant four-fold classifica-
tion with respect to invocation of law.
Specifically, the most likely to report their
victimizations to the police are two or
more persons who are victimized by a
lone individual, then two or more persons
victimized by two or more offenders, then
a lone victim of a lone offender, and fi-
nally the lone victim of two or more of-
fenders (Black, 1976:97). The relevant
data are presented in Table 7. With seri-
ousness level controlled, the rank-order of
cells does not consistently conform to
predictions derived from Black's theory of
law. This is because although there is a
systematic "victim" effect along the
organizational dimension, there is not a
parallel systematic "offender" effect
along this dimension. In sum, there is evi-
dence consistent with the theory that
more organized victims are systematically
more likely to invoke the law, but there is
no consistent (or substantial) evidence
that "the more organized the offender, the
more of this immunity
[from law] he en-
joys" (Black, 1976:93). Once again, a
comparatively strong seriousness effect is
apparent.
Social Control
Black's (1976:107) final dimension is
social control:
Social control is the normative aspect of so-
cial life. It defines and responds to deviant
behavior, specifying what ought to be: what
is right or wrong, what is a violation, obliga-
tion, abnormality, or disruption. Law is so-
cial control, but so are etiquette, custom,
ethics, bureaucracy, and the treatment of
mental illness.
As with the other dimensions relevant to
the behavior of law, social control is a
quantity that varies across societies,
communities, organizations, families and
friendships-a quantity with which law
varies inversely (Black, 1976:107). In set-
tings which permit people continuously to
observe and react to each other's conduct,
law is less important as a mechanism of
social control. This proposition can be
tested by examining variations in report-
ing victimizations to the police across
rural, suburban, and urban areas. Much of
Black's discussion implies that in rural
areas, in which informal controls are tradi-
tionally viewed as stronger than in anon-
ymous cities, rates of reporting to the
police will be lower than those in urban
Table 7. Proportion of Victimizations Reported to the Police by Seriousness Level, Number of Victims, and
Number of Offenders, United States, 1974-1976
Seriousness Level
1 2 3 4
Number of Victims Number of Victims Number of Victims Number of Victims
More More More More
Number of Than Than Than Than
Offenders One One One One One One One One
One 34% 55% 36% 53% 44% 66% 71% 86%
(2,618,328) (450,508) (3,564,729) (738,883) (2,390,365) (940,594) (791,691) (159,048)
More Than 34% 59%W 38% 54% 49%o 69%o 70%W 80%W
One (989,576) (360,232) (1,556,805) (593,099) (1,003,481) (672,093) (693,466) (294,856)
14
areas. When the victimization data are
disaggregated according to the place of the
victim's residence (data not shown in
tabular form)-within the central city of
an SMSA (urban), the balance of an
SMSA (suburban), or outside an SMSA
(rural)-there is virtually no relationship
between urbanization and reporting to the
police. For the least serious victimiza-
tions, the percentages of victims reporting
to the police in urban, suburban, and rural
areas are 36%, 40%o and 40%. For the most
serious victimizations the respective fig-
ures are 74%, 82% and 79%.
Social control is hypothesized not only
to vary across macroareas but across
microareas as well. Black (1976:110)
maintains that private social settings have
more social control (other than law) and,
as a consequence, less law than do public
settings. In connection with reporting
crimes to the police, it follows from this
premise that reporting should be greater
for victimizations occurring in public
places ("on the street" and in public con-
veyances) than in homes or offices. The
relevant data are presented in Table 8.
The most private of the places shown in
Table 8 is the home and the least private is
"on the street.'" These data are contrary
to the prediction that where nonlegal so-
cial control is the greatest (the home), re-
porting to the police will be the least and,
conversely, where nonlegal social control
is the least (the street), reporting to the
police will be the greatest. For each seri-
ousness level rates of reporting to the
police for victimizations occurring on the
street were lower than those for victimiza-
tions occurring in the home. They were
also lower than the rates for victimizations
occurring "near the home," where social
control would be expected to be greater
because the crime occurred within the vic-
tim's own neighborhood (Black,
1976:109). As a place of occurrence,
"'office/factory" is, in Black's terms, sub-
ject to more nonlegal social control than
Table 8. Proportion of Victimizations Reported to the Police, by Seriousness Level, Place of Occurrence,
and Prior Relationship between Victim and Offender, United States, 1974-1976
Place of Occurrence
Inside
Commercial
Seriousness Own Building/Public Office/ Near On Inside
Level Home Conveyance Factory Home Street School Other Total
stranger 64% 40% 54% 41% 38% 14% 46% 38%
(109,687) (563,677) (20,931) (203,340) (1,579,663) (292,063) (241,930) (3,011,291)
1 non-
stranger 49% 38% 24% 51% 35% 11% 31% 36%
(350,178) (180,818) (31,665) (143,252) (553,573) (223,076) (284,418) (1,740,979)
total 53% 40%W 36% 45% 38% 12% 38% 37%
(459,865) (744,494) (52,596) (346,592) (2,133,236) (525,139) (490,398) (4,752,270)
stranger 53% 36% 36% 57% 40% 13% 42% 40%
(251,568) (1,182,976) (74,458) (425,562) (2,446,669) (260,978) (426,690) (5,068,901)
2 non-
stranger 52% 27% 16% 56% 32% 13% 30% 36%
(509,410) (277,995) (102,491) (2,953,348) (536,816) (205,508) (260,771) (2,188,340)
total 52% 34% 25% 57% 39% 13% 37% 39%
(760,979) (1,460,972) (176,949) (720,910) (2,983,485) (466,486) (687,461) (7,257,241)
stranger 69Wo 58% 68% 67% 51% 26% 57% 55%
(254,764) (520,362) (28,683) (362,835) (2,002,965) (96,996) (417,622) (3,684,226)
3 non-
stranger 63% 43% 11% 62% 46% 1 6% 42% 50%
(427,788) (187,233) (23,314) (269,687) (470,283) (98,012) (260,562) (1,736,875)
total 65% 54% 42% 65% 50%o 21% 52% 53%
(682,552) (707,595) (51,997) (632,518) (2,473,248) (195,008) (678,184) (5,421,101)
stranger 85% 78% 76% 88% 70% 25% 69%o 74%
(224,342) (217,423) (11,474) (107,126) (964,752) (8,997) (130,691) (1,664,805)
4 non-
stranger 72% 75% 100o 79%o 71% 51% 71% 72%
(176,050) (30,678) (1,217) (43,696) (103,593) (7,497) (68,011) (430,742)
total 80% 78% 78% 86% 70% 37% 70% 73%
(400,391) (248,101) (12,691) (150,823) (1,068,345) (16,994) (198,702) (2,095,548)
the street. Rates of reporting are higher
(but not consistently) for crimes occurring
on the street than for those occurring in
offices and factories. Victimizations tak-
ing place "inside schools" have the low-
est rates of reporting to the police, regard-
less of seriousness level. To the extent
that the school is viewed as an institution
having its own independent system of so-
cial controls, then these school data are
supportive of Black's proposition.
Also shown in Table 8 are rates of re-
porting to the police disaggregated on the
basis of prior relationship between the vic-
tim and the offender. This is useful for two
reasons: first, because as place of occur-
rence varies so too does the proportion of
incidents involving victims and offenders
who were previously known to each other
(e.g., victimizations occurring in the vic-
tim's home involve a disproportionate
number of nonstranger victimizations);
second, because Black suggests that in-
creased social control in private settings
derives both from the fact that persons
interacting in private settings are likely to
be friends and acquaintances (among
whom on-going nonlegal mechanisms of
social control exist) and that many re-
stricted places (factories, offices, schools,
etc.) have their own systems of security
(Black, 1976:110). When the prior rela-
tionship between the victim and the of-
fender is controlled, the overall findings
noted above generally maintain. One ex-
ception is that stranger victimizations
occurring in offices/factories have rates of
reporting that are generally higher than
those occurring between strangers on the
street.
Black argues that law varies even with
the time of day. "When people go to
sleep, for instance, most social control re-
laxes as well and law increases"
(1976:110). Consistent with this hypoth-
esis is the finding that for victimizations of
low seriousness reporting to the police in-
creases from one-third for those victimiza-
tions occurring during the daytime to
one-half for those occurring between mid-
night and six a.m. As seriousness in-
creases, the strength of this relationship
decreases, such that for the most serious
victimizations there is little variation in
reporting to the police by time of occur-
rence (daytime, 74%; 6 p.m. to midnight,
75%; midnight to six a.m., 72%). Thus,
overall, the social control dimension re-
ceives only partial support.
Discussion
The Behavior of Law is an important
contribution to the sociology of law both
because of the empirical questions that it
raises and because it is generally set forth
in such an explicit manner that it is testa-
ble. Black predicts that law, which can be
quantified in a variety of ways, is associ-
ated with several critical dimensions;
Black predicts the direction of these asso-
ciations, and the conditions under which
these associations hold. Through the use
of a great variety of concrete examples
Black facilitates the research task by
translating central concepts into indi-
cators.
The ability of Black's theory to explain
reporting to the police can be summarized
briefly. According to the stratification
postulates of Black's theory of law as they
have been operationalized here, reporting
to the police should have varied directly
with the victim's rank, should have been
greater for victimizations among wealthy
nonstrangers than among less wealthy
nonstrangers, should have been greater
for victimizations between strangers than
for victimizations between nonstrangers,
and should have varied directly with areal
income. With the exception of a slightly
greater overall rate of reporting for
stranger victimizations than for
nonstranger victimizations, these stratifi-
cation propositions were not supported.
The propositions relating to morphol-
ogy lead to the expectation that law will be
used increasingly as relational distance in-
creases. In the context of reporting vic-
timizations to the police, this implies that
reporting will be greater for larger com-
munities than for smaller communities and
for more densely populated areas than for
less densely populated areas. The proposi-
tion that law varies directly with integra-
tion implies that reporting to the police
will be greater for employed persons
than
for unemployed persons and for married
persons than for single persons. Of these
four morphological expectations support
is found only for the hypothesis that mar-
ried persons have a higher rate of report-
ing to the police than do single persons.
Following Black, educational level was
used as the indicator of individual and
neighborhood culture to test the proposi-
tion that law varies directly with culture.
Although there is weak support for this
proposition on the individual level, there
is weak evidence contrary to the hypoth-
esis on the areal level. At neither the indi-
vidual level nor the areal level is the rela-
tionship between education and reporting
to the police as substantial as required by
Black's theory.
Black proposes that law varies directly
with organization and hence the finding
that business establishments have a higher
rate of reporting to the police than do in-
dividuals is consistent with Black's orga-
nizational hypothesis. On the other hand,
his theoretical predictions regarding varia-
tions in rates of reporting to the police
according to whether the victim and the
offender have greater or lesser organiza-
tion are not consistently supported. The
organization of the victim is associated
with greater reporting to the police but,
contrary to theoretical expectations, the
organization of offenders does not reduce
reporting to the police.
The proposition that law varies in-
versely with other forms of social control
was operationalized by examining rates of
reporting by extent of urbanization, time
of occurrence, and place of occurrence.
Rates of reporting were found to be ho-
mogeneous across levels of urbanization,
but were found to vary somewhat across
time and place of occurrence. Although
the data relating to time of occurrence for
victimizations of low seriousness are con-
sistent with Black's theoretical predic-
tions, those relating to extent of urbaniza-
tion are not, and those relating to place of
occurrence offer only partial support.
Most of the predictions of Black's
theory of law are not compatible with
these victimization survey data on the in-
vocation of the criminal law. For a theory
that purports that ". . . it is possible to
explain all of [the behavior of law]"
(Black, 1976:4), these results cannot be
considered encouraging. On the other
hand, at the trivariate level, when the di-
mensions central to Black's theory of law
are controlled, in every case there is evi-
dence of a substantial seriousness effect.
This is true when both characteristics of
individuals (Tables 1, 2, 5, and 6) and
characteristics of areas (Tables 3, 4, and 6)
are controlled. Also, without exception, at
the trivariate level the seriousness effect is
greater-usually much greater-than the
effects of the indicators central to Black's
theory of law. In the few instances in
which there is some support for Black's
hypotheses, the strength of support de-
creases as seriousness increases.
The centrality of seriousness to the
phenomenon of reporting to the police,
particularly in conjunction with the rela-
tive weakness of the dimensions at the
core of Black's theory of law, suggests
that an adequate theory of criminal law
must incorporate some measure of the
consequences of legal infractions to indi-
viduals in order to be an accurate model.
It is, of course, conceivable that the rela-
tion between variability in conduct and
variability in the behavior of law is con-
fined to reporting of victimizations to the
police and is not of importance to the
quantity of criminal law in other spheres.
However, research concerning arrest
(Hindelang, 1974; Hagan, 1972; Goldman,
1963), prosecution (Hagan, 1974) and
sentencing (Green, 1964; Hagan, 1974;
Chiricos and Waldo, 1975) indicates that
the gravity of the infraction against legal
norms is a major determinant of the quan-
tity of criminal law in general.
To be consistent with the available data,
an adequate theory of the behavior of
criminal law must incorporate a proposi-
tion stating that the quantity of criminal
law varies directly with the serious-
ness of the infraction. That is, the
gravity of the infraction against legal
norms is a major determinant of how
individuals and legal systems react to the
infraction. Such a proposition, however,
is explicitly ruled out of Black's theory by
his stance that the behavior of law can be
explained ". . . without regard to the . . .
conduct of the deviant" (Black, 1976:118).
By excluding individual conduct from his
theory, Black has excluded what our data
(and the data of others cited above) have
shown to be an extremely important de-
terminant of the quantity of criminal law.
Unlike Black's definition of seriousness
(cited above), seriousness as we have
conceptualized and operationalized it can
be defined independently of the quantity
of law. The available research data sup-
port the notion that within societies there
is general consensus regarding the rank
order of common-law infractions by seri-
ousness (Rossi et al., 1974). Specifically,
it has been found that such rankings are
generally consistent (i.e., correlations on
the order of .9) across social class, educa-
tion, race, sex, and age (Rossi et al.,
1974). Furthermore, replications of the
Sellin-Wolfgang seriousness scale in
Canada (Akman et al., 1967), in Puerto
Rico (Velez-Diaz and Magargee, 1971),
and in England, Taiwan, Brazil, and
Mexico (Pease et al., 1975) show a general
cross-cultural consensus as well. These
studies suggest that within and across
societies there is general agreement on
elements of many criminal infractions that
make them more or less serious.9 The data
indicate that variation in these elements of
seriousness substantially affects variation
in the quantity of law and cannot be ig-
nored if the theory is to model the be-
havior of the criminal law.10
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See also Newman's (1976) analysis of data from
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1974 "The seriousness of crime: normative
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American Sociological Review 39:224-37.
18
Sellin, T. and M. Wolfgang
1964 The Measurement of Delinquency. New
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1978 Review of The Behavior of Law. Contem-
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COMMON SENSE IN THE SOCIOLOGY OF LAW*
DONALD BLACK
Yale University
American Sociological Review 1979, Vol. 44 (February):18-27
The effort by Gottfredson and Hindelang (1979) to test some of the theory in The Behavior of
Law (Black, 1976) is worthy of comment, since it illustrates how sociologists can be misled by
common sense. First, because they employ data from surveys of "criminal victimization,"
conduct not considered "crime" by the respondents was lost from view, making a test of the
theory impossible. Second, because they attempt to explain law with the "seriousness" of
crime, they mistake an evaluation for a description, thereby offering as a solution what is in fact
a problem in the sociology of law. The weaknesses in Gottfredson and Hindelang's work may be
found in the study of law more generally, and also in the study of other phenomena in sociology.
Common sense is the style of discourse
by which people understand reality in
everyday life. It is a guide to practical
action, and is radically different from sci-
ence in its pure form (see Schutz, 1953;
Garfinkel, 1960; Geertz, 1975). One dif-
ference is that, unlike science, common
sense does not distinguish sharply be-
tween facts and values.' Instead, evalua-
tions of reality appear in a rhetoric of de-
scription, so that statements about what is
or is not desirable are presented as if they
were statements about what is simply the
case. A seemingly descriptive word such
as "art," for example, actually means in
common sense that something is worthy
of aesthetic appreciation, just as "illness"
refers to something that is worthy of med-
ical attention. Similarly, the taste of one
kind of food or drink is said to be "better"
than another kind, as if this were a matter
of fact, something about the food or drink
rather than about the person who con-
sumes it. Whatever the topic may be-the
weather, a suit of clothes, or a person-an
evaluation in common sense tends to
sound like a description.
Partly because of this, common sense
may enter unnoticed into the discourse of
science. The "facts" may then contain
hidden meanings, and scientists may un-
wittingly report as findings or even pro-
mote as theory what is actually common
sense itself. Since it is a study of human
behavior, sociology may be especially
vulnerable to problems of this kind. In any
case, if only because it is a science,
sociology in its pure form involves an
understanding of reality which is different
from that of common sense. Consider the
sociology of law.
In common sense, law is, among other
things, a way of achieving order and jus-
*
Address all communications to: Donald Black;
Dept. of Sociology; Yale University; New Haven,
CT. 06520.
I thank M.P. Baumgartner for criticizing an earlier
draft.
I
Other characteristics of common sense are dis-
cussed by Geertz (1975). For example, practitioners
of common sense are less skeptical than scientists.
The nature of reality is taken for granted: it is "of
course"' the case, what "everyone knows," what is
"obvious" to anyone with "ordinary intelligence."
Unlike science, then, common sense requires no ex-
pertise. Without special preparation or effort, any-
one can and should have a good deal of common
sense. For that matter, people in everyday life do not
even recognize common sense to be a body of ideas,
but take it to be a product directly derived from
experience, an expression of reality itself.

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