The Behavior of Law and the Sociology of the Case
Donald Black (1976, 1989).
Black offers a conception of law as a patterned behavior. Law is not primarily concerned with rules and discriminatory practices are not merely aberrations but they are inherent in the very way law behaves.
The sociology of the case better explains law and offers lawyers various strategies to improve their practice and reformers to become aware of how to minimize biases within the courtroom.
For Black, law is governmental social control.
The sociology of the case
It is rooted in the tradition of legal realism and is offered as a direct challenge to legal formalism, which sees law as an affair of rules.
Lawyers should do research about cases where there is similarity as to their social structure even if they are technically dissimilar. Sociological litigation analysis should be a central component of legal practice.
Law is not assumed to be logical. Law is how people actually behave. In the sociological model the emphasis is on the social structure of the case, whereas in the jurisprudential model, social characteristics are supposed to be irrelevant, they are extralegal.
Black argues that the outcome of any litigation is based not so much on formal rationality bur rather on the sociology of the case, i.e., the social status, the degree of intimacy, speech organization between conflictual parties, the perceived authoritativeness of actors before the court, and other factors. These will influence: (i) whether a complaint will be filed in court, (ii) who will win and lose, and (iii) what the outcome will be (punishment, fine, etc).
It also predicts how third parties to the case affect it.
Speech forms also have an effect on the outcome of the case. Those testifying in the powerful speech mode are seen as more credible.
Legal Thought (Formal Rationality)
I: does a victim of a personal property theft have the right to kill in self defense?
R: Section 34 of the Cdn Criminal Code
A: In this case, the accused did not intend to kill, just to defend himself, he applied necessary force to defend himself.
C: Yes, the victim of a personal property theft has the right to kill in self defense.
No relevant rules. People who follow legal thought canít see relevant sociological facts.