black's theory on the behavior of law revisited ii: a restatement of black's concept of...

Black’s Theory on the Behavior ofLaw Revisited II: A Restatementof Black’s Concept of Law

KAM C. WONGChinese University of Hong Kong, Hong Kong

Thus any scholarly analysis of the nature of law must reckon withpopular conceptions and with the authoritative declarations of whatlaw is. Yet such conceptions and declarations cannot simply be adoptedoutright as scientific formulae (Berman & Greiner 1966).

On what ‘table’, according to what grid of identities, similarities, andanalogies, have we become accustomed to sort out so many differentand similar things (Foucault 1970).

Introduction

In 1976 Donald Black introduced his theory on the behavior of law (Black1976). Black postulated that the behavior of law as “governmental socialcontrol” is quantifiable, predictable, and follows deducible general rules(Black 1976: 1). In Black’s theory, five independent variables —stratification, morphology, culture, organization and social control — cor-responding to five aspects of social life, predict and explain the behavior oflaw (Black 1976: 1–2). The concept of law occupies a central place inBlack’s theory; it is the social behavior he tries to explain. A careful reviewof the critical literature and an independent analysis of Black’s concept oflaw finds it to be problematic as the concept is not clear on the surface, thekey term of government is not defined, the concept is inadequate whenapplied, and it fails to capture substantial and important quasi and de factogovernmental social control institutions and measures in other cultures,e.g. China’s family discipline or communal self-help. This paper provides a

International Journal of the Sociology of Law 1998, 26, 75–119

0194–6595/98/010075 + 45 $25.00/0/sl980059 © 1998 Academic Press Limited

restatement of Black’s concept of law by introducing the idea of ‘more orless governmental social control’. Law as more or less governmental socialcontrol exists when the government endorses private social control orotherwise delegates social control powers to private parties.

The article consists of eight sections. “Black’s concept of law” provides asummary of Black’s concept of law; detailing its essence and contributions.“Literature review on Black’s concept of law” offers a critical review ofBlack’s concept of law and finds it to be unclear as defined. “Problems withapplying Black’s concept of law” furnishes an independent assessment ofBlack’s concept of law as governmental social control and finds it to beinadequate in addressing quasi-governmental social control. “A rationalefor the restatement of Black’s concept of law” discusses the rationale forthe restatement of Black’s concept of law. I observe that, as a general anduniversal theory of law, Black’s concept of law should be able to but cannotadequately capture much of the important and substantial de facto andquasi-governmental social control experience in Qing China. “A restate-ment of Black’s concept of law I: The deconstruction of the unitarygovernment myth” shows that Black’s conception of government as aunitary whole is a myth, theoretically and in practice. A cursory review ofthe history of government, from federalism to colonialism to polycorporat-ism, shows that the practice of unitary government is the exception anddivided rule and shared governance is the norm. “A restatement of Black’sconcept of law II: Law as more or less governmental social control”provides for a restatement of Black’s concept of law by introducing the twinconcepts of government sponsorship of private social control andgovernment delegation of social control powers to private parties. “Issuesarising from the restatement of Black’s concept of law” addresses some ofthe more important methodological issues and many of the theoreticalimplications of the restatement. I further argue that the restatement isrequired, anticipated, and consistent with Black’s original theoreticalassumptions and logic. “Summary and conclusion” details the paper’s mainarguments, contributions, and limitations.

Black’s Concept of Law

Black’s concept of law is a simple and straightforward one. Black defineslaw as “governmental social control” (Black 1976: 1). Government isdefined as institutionalized political authority (Wong 1995: 213–215).Social control is defined as “response to deviant behavior” of every kindincluding “law, etiquette, custom, ethics, bureaucracy, and the treatment ofmental illness” (Black 1976: 105).

Black adopts an “empirical” and not a “normative” definition of law. Inso doing, Black intends to breach the gap between lawyers’ (Austin 1890)

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and sociologists’ concept of law (Patterson 1953: ch. 18) by providing fora “behavioral version of the state law conception” (Cotterrell 1983: 253,n. 9). In all, Black tries to get away from the rule-bound and authority-based concept of law (Griffiths 1984: 38, n. 3) in the search for asociological and scientific synthesis.

To Black, law has no fixed form or content beyond that which is infusedby society. Law has no independent existence beyond how it is applied orreceived by the end-users of law. In particular, law is not given by super-ordinary law givers, e.g. nature, God, political authority. Law is assignedmeaning by the mobilizers (Black 1970: 739; 1973: 125–149) and lawenforcers (Davis 1969; Skolnick 1975; Gottfredson & Gottfredson 1988).Law is actualized while in use and realized during action (Sykes & Clark1975: 584–600). Each government social control act taken in response to adeviance defines, as it becomes, law in action. The government and citizensin the criminal justice system (Skolnick 1967: 52–70; Blumberg 1967;Rosett & Cressey 1976; Heumann 1978) — judges (Schubert 1975);prosecutors (Jacoby et al. 1982); defenders (Blumberg 1967: 95–117);police (Piliavin & Briar 1964: 206–214; LaFave 1965; Skolnick 1967;Lundman 1974: 128–136; Reiss 1971; McDonald, 1976; Stanko 1981–1992:225–239; Erez & Tontodonato 1990: 451–475); victims (U.S. GovernmentPrinting Office 1992: 110–111); criminals (Black 1972: 125–149, 1087–111)— all come together at a certain time to decide for the occasion what lawis. This gives law an evolving content anchored within the hearts and mindsof the people (Devlin 1965) as reflecting deeper cultural tradition (Wilson1968; Church 1985: 449–518), broader social convention (Jacob 1977) andemerging interests of every imaginable kind (Lowi 1969), and also asstructured by organizational constraints (Lundman 1983: 286–292) anddriven by situational dynamics (Manning & Van Maanen 1978: 71–90;Worden 1989: 667–771).

Black’s sociological law ‘creation’ takes place as set-piece maneuvers.Cultural tradition imposes a core legal meaning from its historical roots.While currents and cross-currents of social conventions and situationalexpedience leave their imprints on jurisprudence. The combination ofsuch legal activities over time gives law its feel, touch, texture, and temporalfinality; this albeit tentative and always in flux (Cotterell 1988: 19).

In the end, the beauty of Black’s sociological definition of law rests withits simplicity, clarity, vitality, and potential. Black makes clear that: (1) theidea of law is not fixed, but changing; (2) the idea of law is not created bydefinition, but born of action and experience; (3) the idea of law is notimposed (by law givers) from above, but is developed (by law users) frombelow; and (4) above all, there is no single authority on the meaning of lawas there are many participants in the practice of social control.

Black’s Theory on the Behavior of Law 77

Literature Review on Black’s Concept of Law

There are very few critical analyses and no empirical critiques on Black’sconcept of law (Wong 1998a). Sherman observed in his general review ofBlack’s theory of law that Black’s concept of law needs to be defined in ameaningful manner (Sherman 1978: 10–11). Griffiths has written the onlyfull-length article to date on Black’s concept of law, in which he lamentedthat Black’s concept of law was defined without reference to the theoreticalstructure. More pertinently, he objected to adopting a taxonomicapproach to defining the concept of law (Griffiths 1984: 37). Thetaxonomic approach separates legal from non-legal social control by anatheoretical, nominal, and descriptive definition (Griffiths 1984: 39). Thisapproach fails to illustrate the relationship between law and social controlfor a number of reasons. (1) There is no common agreement amongst andbetween the various disciplines of law, political science, anthropology,sociology on how law should be defined, i.e. where to draw a line between“law” and “no law”. (2) It is difficult, if not impossible, to draw ameaningful line between “law” and “no law”. Even if an arbitrary line canbe drawn, the definition is likely to be over-inclusive and under-inclusive inmeasuring legal vs. non-legal social control. (3) Any line drawn between“law” and “no law” is likely to be based on an idealistic or moralistic imageof the law. An empirical definition of law cannot be constructed on such anidealistic or normative definition. (4) Any definition risks declaring allsocial control to be law or some societies to be without law (Griffiths 1984:45–46). Griffiths suggested an improvement upon Black’s concept of law bymeasuring its relative ‘legalness’, i.e. the basis of specialization in ordivision of social control labor (Griffiths 1984: 38).

More recently, I compiled a comprehensive review of Black’s theory oflaw (Wong 1995: 189–232). In this, I found substantial problems withBlack’s concept of law. Particularly, the concept is not clearly defined onthe surface; a critical conceptual link, the term government, is not defined.It is ambiguous when applied; it cannot adequately capture alien legalexperience in historical or cross-cultural settings. Finally, it is nottheoretically based. In all, Black’s concept of law runs counter to hisoriginal intention of developing a general theory of law which promises tobe sociologically informed and universally applicable.

Problems with Applying Black’s Concept of Law

The problem with conceptual adequacy — the case of quasi-governmental socialcontrol

Black conceived his concept of government in dichotomous terms.Government, as with law, either exists or does not exist. He did not

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entertain the possibility of more or less government. There are two issuesinvolved here, both of which point to the inadequacy of Black’s concept oflaw in explaining multiplex law with government sponsorship anddelegated authority.

Black’s concept of law is deemed inadequate here because its explana-tory power is limited only to formally institutionalized social control, i.e.law. It does not explain all layers (state vs. community vs. clan vs. family)and spheres of social control (public vs. semi-private vs. private) whichimplicate government authority. In his defense, Black can argue fairly thathis theory is only intended to and is quite adequate in explaininggovernmental social control of the institutional kind. That is to say, Blackcan argue that the scope of a theory (i.e. how much and how little socialcontrol it explains) should be left up to the theorist. More specifically,Black’s theory of law is not intended to explain quasi and de factogovernmental social control. As appealing as this rejoinder might be, thisapproach diverges substantially from Black’s original intent and method inthe study of law. Inasmuch as Black wanted to study law sociologically fromthe end-user’s perspective, the failure of Black’s concept of law to providefor an explanation for quasi and de facto governmental social control,which is deemed by the end-user to be in every respect governmental socialcontrol, serves to undercut, if not even defeat (in cases where there is morequasi and de facto governmental social control than institutionalizedgovernmental social control) the objective Black was pursuing in inventinga general theory of law.

More significantly, Black’s sociological inquiry of law knows no artificialboundary in methodology. It should not draw a distinction between theoperations of government and quasi-government social control.

The problem with conceptual clarity — the case of governmental capacity

First, when is a government acting in the capacity of a government inexercising social control? Alternatively, under what circumstances can it besaid that the government is not acting in a government capacity inexercising social control [1]? For example, is a government acting in thecapacity of a government when it performs private social control functionswith government authorities? Take, for example, a ‘hire-a-cop’ programwhich allows the citizens to purchase extra police protection to provide forprivate security. Is a ‘hire-cop’ who provides private security services actingin a governmental capacity? (Reiss 1988: 2–6).

Second, when are citizens acting in the capacity of a government? Morespecifically, under what circumstances can private citizens’ social controlaction be considered an exercise of government authority, vesting it withquasi-governmental social control capacity. For example, professional


private security (Shearing & Stenning 1983: 493–506; Cunningham &Taylor 1985; Walsh & Donovan 1989: 187–197) or community self-help(Garofalo & McLeod 1986; Rosenbaum 1986, 1988: 323–385; Marx 1989:500–519; Bennet 1990) has assumed many of the traditional publicpolicing roles and functions (Cunningham & Taylor 1985). Is a pro-fessional private security agent licensed to carry arms and make arrest agovernmental social control agent (Geller 1991: 475–476)? Is a GuardianAngel arrest an act of governmental social control (Pennell, Curtis &Henderson 1985)?

Looking at the issue this way, the question involved is analogous to,though by no means identical to, the issue of what constitutes state actionor action under the “color of state law” for the purpose of setting forth acolorable claim under the Fourteenth Amendment or establishing a civilright violation under a 42 U.S.C. 1983 action (Nevin 1985; Cole 1990; 49ALR Fed. 955; 5 Am Jur Pl & Pr Forms (Rev) Civil Rights, Form 81; 42 L Ed2d 922).

Section 1 of Fourteenth Amendment of the U.S. Constitution provides inpertinent part:

No State shall make or enforce any law which shall abridge theprivileges and immunities of citizens of the United States; nor shall anyState deprive any person of life, liberty, or property, without dueprocess of law; nor deny any person within its jurisdiction the equalprotection of the law.

42 USC 1983 provides:

Every person who, under color of any statute, ordinance, regulation,custom, or usage, of any State or Territory or the District of Columbia,subjects, or causes to be subjected, any citizen of the United States orother persons within the jurisdiction thereof to the deprivation of anyrights, privileges, or immunities secured by the Constitution and laws,shall be liable to the party injured in an action at law, suit in equity, orother proper proceeding for redress.

Both the due process clause of Fourteenth Amendment and the civil rightsprovision under 42 USC 1983 provide protection only against state actionor activities under the color of state law. They do not protect against privateactions (15 American Jurisprudence 2nd. Civil Rights, s. 7–8). However, theFourteenth Amendment has been interpreted to protect against de jure aswell de facto state action (Gilmore v. Montgomery, 417 US 556, 41 L Ed 2d.304, 94 S Ct. 2416). The determination of what constitutes state action is tobe made on a case-by-case basis. In each instance the reviewing court has todetermine the following.

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(1) State action by compulsion. Whether a private (racially discriminatory)action is a state action when compelled by state law or a customhaving the force of law (Adickes v. S. H. Kress & Co. 398 US 144, 26 LEd 2d. 142, 90 S Ct. 1596).

(2) State action by involvement. Whether there is a state action when a statehas significantly involved itself with private invidious discriminationas a result of the potential impact of official actions (Reitman v. Mulkey,387 US 369, 18 L Ed 2d. 830, 87 S Ct. 1627).

(3) State action through subsidy. Whether there is a state action when theprivate party, in carrying out a specific governmental function heavilysubsidized by the government, has its freedom of decision makingsuborned by the government through contract, reservation of rights,or oversights (McQueen v. Druker (CA1 Mass) 438 F2d 781).

(4) State action through aid and assistance. Whether there is a state actionwhen the state (courts) aided the private party in performing(segregated) mass recreation public functions (Evans v. Newton 382US 296, 15 L Ed 2d. 373, 86 S Ct. 486, on remand 221 Ga 870, 148SE2d 329).

(5) State action by performing public function. Whether there is a state actionwhen a private (dental) professional association is performingimportant state function is excluding ineligible (minority) applicants(Hawkins v. North Carolina Dental Association (CA4 NC) 335 F2d718).

(6) State action through licensing. Whether there is a state action when astate-licensed gambling hotel facility excludes a person in compliancewith a state gambling commission regulation against criminalassociation (Marshall v. Sawyer (CA9 New) 365 F2s 105, cert den 385US 1006, 17 L Ed 2d. 545, 67 S Ct. 713).

The finding of state action for the purpose of affording 1983 relief andthe discovery of governmental social control for the purpose of applying ofBlack’s concept of law are neither simple nor uncontroversial, as both turnon the degree of governmental involvement or state participation inprivate citizens’ affairs.

The problem with units of analysis

This brief excursion into the 42 U.S.C. 1983 state action jurisprudence alsohighlights the difficulty in properly attributing the behavior of law to theappropriate governmental unit. State action cases such as those discussedabove not only take issue with the degree of state responsibility whenparticipating in private wrongdoings, but also highlight the more specificquestion of which governmental agency should ultimately be held


accountable for a civil rights violation. In the context of applying Black’sconcept of law, the problem is not only with trying to draw a meaningfuldistinction between ‘law’ and ‘not law’ or ‘governmental social control’and ‘non-governmental social control’, but also in trying to determine towhich of the many conflicting, contending, converging, or cooperatingpolitical (federal, state, local) or administrative (FBI, CIA, DEA, INS)government units the behavior of law should be attributable. Just as it is notsufficient to demonstrate that the ‘state’, as an all-encompassing politicalunit, is legally responsible for a civil rights violation for the purpose ofimposing 1983 liability, it is not meaningful to show that the ‘governmentalinstitution’, as a unitary political institution, is empirically related to agiven set of behaviors of law for the purpose of validating Black’s theory.The research issue posed here is: what is the proper unit of analysis forpurpose of analysing governmental social control? Research methodsliterature suggests that results from one unit of analysis, e.g. county levelgovernmental social control, cannot be extended to another, e.g. state orfederal level governmental social control (Babbie 1995: 86–94). Thus, it isas important to ask whether there is ‘governmental social control’ as it is toask which governmental social control agency is exercising control for thepurpose of vindicating Black [2]. This turns out not to be a simpleempirical question when there is shared governance (e.g. church v. state),divided political rule (e.g. ‘one country two system’), mixed legaljurisdiction (e.g. federal mandate or funded local community policeprogram), and joint field operations (e.g. drug task force). For example,which ‘government’ is chargeable with the state enforcement of federaldrug policy guidelines, local departure from federal and state zero-drug-tolerance mandates, federally funded state community policing programs,or indigenous enforcement of colonial criminal law?

Simply put, for the purpose of validating Black’s theory of law, thebehavior of one governmental unit should not be considered as the sameas another.

To illuminate further the issue of government participation in privatesocial control, we now turn to China to examine how government andprivate parties work together in exercising government social control.

A Rationale for the Restatement of Black’s Concept of Law

The intellectual challenge

I first discovered the need to restate Black’s concept of law whenconducting research into the operations of the Chinese legal system, usingBlack’s theory of law (Wong 1998). In this research, I tried to ascertainwhether Black’s theory of law could be used to predict and explain

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governmental social control (with respect to the intellectuals) in QingDynasty China. I found Black’s theory of law to be extremely helpful andaccurate in predicting how Qing law worked in China (Wong 1998,unpublished data). I was, however, frustrated by my inability to applyBlack’s concept of law to the bulk of non-governmental social controlexperiences (in terms of matters under control and population beingcontrolled) in China. These ranged from family discipline to clan rule,trade guile regulations, and Confucius ethics involving matters concerningethical transgression, cultural indiscretion, and criminal conduct (van derSprekel 1962). These ‘private’, ‘non-institutionalized’, and ‘informal’social control institutions and practices fall outside of Black’s concept oflaw.

It was the further discovery of the Kongfu (Confucius household) as asemi-autonomous governing household (Moore 1973: 720; Macaulay 1986)which led me to investigate the idea of ‘more or less government’ (Griffiths1984: 38 n.1). This in turn led me to investigate the relationship betweenthe concept of delegated governmental social control and the behavior oflaw. The investigation process eventually led me to conclude that the ideaof ‘more or less governmental social control’ is a necessary supplement,constructive revision, and helpful extension to Black’s concept of law in thestudy of Chinese legal experience.

Initially, I was puzzled by the fact that, though the Kongfu household hassubstantial and effective administrative (social control) powers bestowed bythe Qing government over rites, norms, property, land, tax, and people, itsadministrative (social control) powers were not properly recognized byBlack’s concept of law as governmental social control, i.e. law. This isproblematic for two reasons.

First, it is problematic for Black’s general theory of law to ignoreimportant (for a relevant control population) non-governmental (byBlack’s original definition) social controls which were intended to be, andhave the force and effect of, governmental social control. In this regard, Iconcede that the term general theory can be used with reference to anytheory which is capable of explaining only law or institutionalizedgovernmental social control, and is not applicable to predicting non-governmental or private social control. Nevertheless, I have somereservations in accepting a general concept of law which fails to capture defacto and quasi-governmental social control, albeit of a ‘technically’ non-government origin, particularly when such non-governmental socialcontrol was intended to and did displace the governmental social control.The issue is not one of semantics. It concerns what in substance and realityis governmental social control to the population and subjects it affects, andwhich Black tries to explain and predict, i.e. functional law.


Second, it is problematic for a universal theory of law to fail to capturelarge chuck of social life and legal experience in an alien culture,historically or cross-culturally.

I could have defined Kongfu out of existence, i.e. considered it as non-governmental social control or private self-help (Black 1993), as would astrict ‘Blackian’ constructionist. I feel that I should not for three reasons.(1) Theoretically, the blind adherence to Black’s concept of law in blackletter form would be honoring Black’s definition in its breach. (2)Methodologically, Black’s sociological concept of law is an open receptordesigned to capture all kinds of cultural life, social experiences and legalphenomena. A true test of any sociological concept of law is to investigatewhether such a concept is able to capture alien legal forms and unusualsocial control experiences. (3) Substantively, the Kongfu household socialcontrol powers and effects were real and substantial. For people andmatters under its control, it was the (governmental) social control that wassignificant (Kongfu dangan xuanpian 1982: ch. 3). This is precisely whatBlack intended when he made his concept on law turn on the socialcontrol experiences of the people involved and not on the classicaldefinition of law by the authority (spiritual, political, legal, oracademic).

Two things contributed to my dilemma and resulting aggravation in thisrestatement process. First, in theory testing I am bounded by Black’soriginal theory as I found it. Theory testing is an up or down process. IsBlack’s theory validated or not? This argues against restatement. Theresearcher cannot change the original theory for it to ‘properly’ or ‘better’fit the test. Second, I find Black’s theory to be useful in predicting not onlygovernmental social control, but also effective in explaining the behaviorof non-governmental social control. This suggests that a restatement isnecessary to conform Black’s theory to my empirical observations of thelaw in China.

I finally settled upon a restatement of Black’s concept of law because Ifeel that such a restatement can make Black’s theory more complete and inthe process be able to accommodate my observations in China, without atthe same time doing injustice to Black’s theory in purpose or spirit. It is toomuch of a waste to allow a powerful theory not realizing its fullestpotentials. I am also convinced that the restatement is required by,consistent with, and otherwise anticipated by Black’s theory.

The serendipity discovery (Merton 1976)

Having decided upon a restatement, I went back to my original data tosearch for the reason why Black’s theory was able to predict but did not onthe face of it reach the substantial non-governmental social control

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activities in China. The discovery I made was as obvious as it is simple, albeitone which had before escaped my attention. The Qing government wasinvolved with or otherwise participated in the non-governmental social controlsI had been studying in various capacities from passive countenance topositive delegation of social control rights. The government and theKongfu were co-producers of social control. This conceptual link,government involvement or participation in private social control, was notexplicitly made part of Black’s theory. My intellectual task was now a simpleone; to restate Black’s concept of law by factoring into his original conceptmy newly discovered idea of governmental involvement/participation inprivate social control of all types. I came up with the idea of “more or lessgovernmental social control”, conceptualized as government sponsorshipof private social control and delegation of government social control rightsand responsibilities to the private party.

Relative legalness and more or less governmental social control

I arrived at the concept of more or less governmental social controlindependent of Professor John Griffiths’ (1984) idea of relative legalness.The two concepts differ in several respects.

(1) Griffiths defines relative legalness as “variation in the degree ofdivision of social control labor” from less to more institutionalized(authority, institutions, state) division of social control labor (orDSCL) (Griffiths 1984: 38, 49). I define more or less governmentalsocial control in terms of the relative degree to which thegovernment or state participate in private social control scheme orefforts.

(2) Griffiths makes relative legalness turn on the institutionalization ofsocial control. He asks how the variation in specialization of socialcontrol affects the behavior of law. I make more or less governmentalsocial control dependent on the sharing of political–social controlauthority. I raise the issue of how the distribution of political andsocial control powers affect social control activities. Inasmuch as agovernment is defined by Black as a duly institutionalized governingauthority, Griffiths focuses on the institutional dimension of govern-ment while I concern myself with its authority manifestation.

(3) Griffiths wants to do away with the idea of government altogether. Hefinds Black’s concept of government theoretically barren andempirically useless (Griffiths 1984: 54). While I am in agreement withGriffiths, my only concern here is to reformulate Black’s dichot-omous definition of government to incorporate de facto and quasi-governmental social control in China. In sum, Griffiths seeks to


dispense with the concept of government altogether, while I want toexpand it.

In spite of our differences, I am much indebted to Griffiths for hiselucidation on Black’s idea of governmental social control in relative terms.Particularly, I share with Griffiths the observation that governmental socialcontrol is not absolute, but a relative social phenomenon. While Griffithsmeasures relative legalness with the degree of specialization in DSCL, Iseek to measure relative governmental social control with the degree ofgovernment involvement in private social control.

A Restatement of Black’s Concept of Law I: The Deconstruction of theUnitary Government Myth

Black’s concept of unitary government

Black defines government in dichotomous terms. He does not contemplatethe idea of more or less governmental social control. In this regard Blackechoes historical understanding and follows conventional wisdom. Peoplehave long associated state and government with omnipotent, omnipresent,undivided, perpetual and absolute political control over an area (country)or people (association) (McRae 1606; D’Entreves 1975, ch. 5; Elazar 1987:11). This image of government is so entrenched that it is deemed self-evident and uncontroversial such that even now, when we speak ofgovernment, we immediately identify any government as ‘the government’(much like ‘the nature’) — a super-organic body with a life force of itsown.

Table 1. A restatement of Black’s concept of law: Griffiths’ relative legalnessv. Wong’s more or less government

Wong’smore or less

Griffiths’ governmental socialrelative legalness control

Theoretical definition of Institutionalization of More or less governmentallaw social control social controlOperational definition of Degree of specialization Relative distribution oflaw of social control labor social control powersTheoretical implication Eliminate Black’s Extension of Black’s

concept of government concept of government

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The political theory of divided rule

As political scientist Paul Weiss aptly pointed out, the unitary concept ofgovernment is an ideal and a myth. Government is divided into differentbranches, occupied by many positions and staffed by a variety of people.The Constitution provides a mental map to a logical scheme of distributionof government powers and responsibilities, representing it as a unitarywhole. This has no resemblance to government in action. The term ‘we thegovernment’ encompasses at different instances the sovereign, the rulers,and the ruled. It is not altogether clear what is meant by ‘we’ thegovernment when the term is not defined (Weiss 1986: ch. 8).

Political scientists have long advanced three classical models to explainpower sharing in government. They are, respectively, the pyramid, center-peripheral, and matrix power structures of government.

(1) The pyramid government power structure describes an imposed ruleby a conqueror, e.g. a colonial power. Governing powers rest at theepicenter of the pyramid and are delegated to the base if and whenit is deemed necessary or appropriate to advance or enhance theruler’s control.

(2) The center-peripheral government power structure describes anincremental organic growth of governing power, with the stategovernment posited at the center, from the family to the clan to theassociations to the state. Powers radiate outward from the center inconcentric circles, having been placed there originally through thenatural growth of the collectives.

(3) The matrix government power structure describes the distribution ofgoverning powers arrived at by common agreement and mutualcovenant between coequals, i.e. federalism. Powers are distributed asagreed upon and based on functional needs and effective governance(Elazar 1987: 35–37).

Deconstructing the myth of unitary government

Conceptually, the recognition of the political reality of fungible govern-ment authority (more or less) and malleable government jurisdiction (biggeror smaller) is necessary to pry open the conceptual black box of unitarygovernment (Deng 1993). Debunking the myth of government enables theproper construction of a sociological definition of law which recognizes therelativity of governmental social control, i.e. more or less governmentalsocial control in multiplex law.

Deconstructing the myth of government as a holistic and integrated unitcan be achieved in two ways: internal and external.


(1) Internal deconstruction. There are substantial division of labor withinthe government, particularly when government services are bureau-cratized, horizontally and vertically. Thus while the political sovereignmakes policies at the top, it is up to the professional administrators tocarry them out at the bottom, e.g. a zero tolerance drug policy fromthe President of the U.S.A. has to be executed by the Department ofJustice and implemented by the FBI. This is a vertical division ofpolitical v. administrative labor; policy-making v. policy executionroles. Even in mediaeval Europe, the sovereign in the body of theKing could not be everywhere at once; there was substantialdelegation of governing powers and responsibility to appointedofficials, e.g. feudalism. The political sovereign then, as now, couldalso expand his control or fine-tune his administration by creatingcoordinated horizontal specialized departments, e.g. establishingjudicial v. legislative v. executive branches of government. This is ahorizontal division of labor.

(2) External deconstruction. There may be competing sovereign powers(legal pluralism) in a state, each commanding the loyalty, allegiance,and obedience of a group of the citizens of the state at a point of timeand over a geographical area, e.g. a citizen of the U.S.A. is subjectedto multiple jurisdictions at any point in time: county, state, andfederal law applies, dependent on the time, place, and issuesinvolved, and a citizen of imperial China is subject to overlappingsocial control as a son to his parents, as a member to his family clan,and as an associate to his professional guile.

The intellectual and political origin of divided government

The discovery of government as a comprehensible, even manageable,secular institution is a recent phenomenon made possible by Enlight-enment (Descartes 1637; Spinoza 1674), or rational (Kant 1969) andpositive thinking (Bacon 1620; Becker 1832). The assault on the unitaryconcept of government began in earnest in the 18th century (Locke 1690;Rosseau 1720). The process was facilitated by a radical change in the ‘orderof things’ as a result of radicalization of language use and thought patterns.After the 17th century, people do not think of matters (includinggovernment) as fixed objects given to our senses but as transferable andtransformable ideas accessible to the mind. More significantly, ideas ofabstractions of things were ordered differently from ideas of representa-tion of material and tangible objects. As Foucault observed:

Resemblance, which had for long been the fundamental category ofknowledge … became disassociated in an analysis based on terms of

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identity and difference … comparison became a function of order;and, lastly, comparison ceased to fulfill the function of revealing howthe world is ordered, since it is now accomplished according to theorder laid down by thought, progressing from the simple to themultiplex … this new configuration may … be called “rationalism” …the seventh century marks the disappearance of old superstitious andmagical beliefs and the entry of nature, at long last, into the scientificorder (Foucault 1970: 54).

The appearance of rationalism and scientism destroyed the unquestionedlegitimacy of unitary government which until then had been based onmythology and spiritualism. The discovery of a new ‘order of things’challenged the basic assumptions and the underlying analytical mode ofindividable rule and opened peoples’ minds to the new and excitingpossibilities of alternative rule.

More particularly, liberalism challenges the legitimacy of absolutegovernment in claiming that all powers of government ultimately derivefrom the people (Frug 1980: 1074–1078). The state exists not to promotepeople’s spiritual salvation but to service its citizens and to guarantee theirlife, liberty, and property. In claiming that the power of government isderived from the people, the lliberals contributed to the demise of theomnipotent and omnipresent government authority. Liberalism sec-ularizes, humanizes, and in doing so deconstructs state authority, whichhad previously been unquestionable and unquestioned (Foucault 1975).This allows for the understanding of government in more or lessauthoritative terms.

The practice of divided rule and relative governance

Since the 18th century, political expediency and economic necessity haveprovided the necessary impetus and sufficient justification for theincremental delegation of governmental social control functions and thedevolution of governmental social control powers into private hands. Inthe 20th century, colonial powers took the initiative of allowing thecolonial governments indigenous self-rule (Hooker 1975). After WorldWar II, political scientists, especially international relationships scholars,were forced to confront the issue of divided nations (i.e. one nation, twosovereigns), the most significant cases being China (since 1949), Germany(1945–1990), Vietnam (1954–1975), and Cambodia (since 1970). Dividednations raised the issue of the possibility of divided rule politically,administratively, and socially (Weng 1987–1988). Still more recently, in the1980s, liberal thinkers started to champion the deinstitutionalization ofstate facilities (Rothman 1980), progressive reformers began to call for thedelegalization of the justice process (Harrington 1982: 35–71), and


conservative politicians advocated the privatization of government func-tions (De Sousa Santos 1982: 249–266).

The above brief discussion of divided rule shows that the idea of relativegovernment is not new in theory or practice, nor is the functionaldistribution of government powers to private parties a recent invention.Sovereign governments since antiquity have been willing to part with someor all of their powers to others (private parties included) to facilitatedomestic rule, further their own interests, or allow for foreign conquests.Let us now examine some of the more salient examples of dividedgovernment in the past as well as present.

Church v. state. Arguably the oldest division of rule under one roof is thestruggle for power between the church and state. Then, as now,symbolically and substantively, the greatest challenge to the concept ofunitary government rule is the separation of the church and state. Thus,while the state imposes absolute secular rule over its subjects, the churchclaims complete spiritual control over its followers (Fitzjames 1883: 461;Bermen 1982).

Feudalism. Feudalism was a contractual system of political and militaryrelationships in the High Middle Ages. It was characterized by the grantingof fiefs in land and labor to the vassal in return for political and militaryservices (Bloch 1961). As early as the 10th century AD, feudal kings andprinces acknowledged the utility and inevitability of divided rule by givingland estate to their vassals in return for an oath of loyalty (Bendix 1976).While the feudal kings still held supreme military and political powers,much of the fiscal, administrative, and social control power was distributedto the dukes, lords, and vassals (Yu 1984: 1–8).

Federalism. In a federal government, political power is functionally dividedbetween the central or national authority and smaller local units ofgovernment. Federalism differs from feudalism in that the former enjoysautonomy and independence from the central government (Elazar 1987:35–37). Local governments are lesser governments in every sense of theword (Frug 1980: 1086). They are given restrictive delegated powers withwhich to rule under the constitution of the land. Local municipalcorporations, e.g. town halls, exercise the power of control with condi-tional delegated powers from the central government [3]. Any exercise ofpower beyond granted authority is considered ultra vireos and void ab initio[4]. The power structure of federalism in the U.S.A. was clearly describedby the U.S. Supreme Court in the case of Hunter v. City of Pittsburgh, 207U.S. 161, 178–79 (1907):

90 K. C. Wong

Municipal corporations are political subdivisions of the State, createdas convenient agencies for exercising such of the governmental powersof the State as may be entrusted to them … The number, nature, andduration of powers conferred upon these corporations and theterritory over which they shall be exercised rests in the absolutediscretion of the State. In all these respects the State is supreme.

Localism. While federalism envisions a government from the top down,localism conceives of a government from the bottom up (Briffault 1990a:1–115; 1990b: 346–456). Both share one thing in common — divided rule.Enlightenment and liberalism discover atomistic individualism. In time,individualism takes up collective causes; local communities (geographicalassociations) and common-interest groups (functional associations) com-pete with the central government authority (political association) for homerule and self-determination. The central authority, not conceding defeat,holds on to sovereignty while conceding limited autonomy to commu-nities, groups, and associations in matters of purely local interest andconcern. Localism, in the form of voluntary associations, invents multiplemini-sovereigns, in diverse forms and with different characteristics [5]. Thelegal status of local associations and their relationship to the centralauthority (state) is best captured by the U.S. Supreme Court in Avery v.Midland County.

While state legislatures exercise power over their constituents and overthe various units of local government, the States universally leave muchpolicy and decision making to their governmental sub-division.Legislators enact many laws but do not attempt to reach thosecountless matters of local concern necessarily left wholly or partly tothose who govern at the local level. What is more, in providing for thegovernments of their cities, counties, towns, and districts, the Statescharacteristically provide for representative governments — fordecision making at the local level by representatives elected by thepeople. And not infrequently, the delegation of power to local units iscontained in constitutional previsions for local home rule which areimmune to legislative interference 390 US 474, 481 (1961).

Colonialism. In more recent times, adventurous spirits led the Spaniards toexpand their sea trade to distance shores. Private citizens received royalorders to discover and claim foreign possessions (Sale 1990: ch. 2). Later,industrialization and commercialization led first the Dutch, and then theEnglish, to colonize overseas markets in search of a Commonwealth. TheDutch [6] and British [7] East India Companies received Royal instructionsto act on behalf of the Crown in the Far Eastern ports of trade (Fieldhouse1965: 145–156) [8]. The Spanish explorers, Dutch traders and later Britishcolonizers acted with explicit government powers and were perceived by


the local residents as foreign government authorities (Fieldhouse 1965:187–190).

Devolution and privatization. Nowadays, political ideology (smaller govern-ment, lesser government, redefined government) requires and economicreality (shrinking government sector v. expanding market sector) dictatesthe devolution of government authority on the one hand (Cohen 1979:339) and the privatization of government functions on the other (Posner1973: 461–474; Lawson 1988: ch. 18–19). Devolution and privatization isaffected by and in turn affects the distribution of social control power.Much power (and many functions) once held by government are nowdelegated to private parties, e.g. community corrections and privatepolicing.

Polycorporatism. Polycorporatism is the most recent development in thedivision of labor and sharing of power in government, notably in WestGermany in the 1980s. Polycorporatism happens when the state networkswith other powerful and influential intermediary associations to facilitatemore effective government. In the process, private voluntary associations(such as organized interest groups in the U.S.A.) expand their representa-tive role to the realm of policy-making and implementation. When privateassociations assume more and more political missions and take on anincreasingly public role, they become public institutions in all but name(Teubner 1993: 553–575). When governments co-opt the private associa-tions’ services or borrow their influences, these associations become quasi-government in reality (Teubner 1993: 553). Polycorporatism is beyonddevolution and privatization, which presupposes the dominating centralauthority found in traditional government (Frug 1993: 252–338). In anincreasingly fragmented society (Lowi 1969), intermediary associationshave a different role to play, mediating “horizontally between theautonomous logic of different social discourses”. The hierarchy of state hasbeen replaced by a heterarchy of different spheres of society (Teubner1993: 556). Whatever the cause [9] of and remedy [10] for state-sponsoredpolycorporatism, the political implication is clear: polycorporatism trans-forms the traditional image of unitary government.

With this network, a new political division of power betweengovernmental bureaucracies and private sector organizations is emerg-ing. Governmental bureaucracies relinquish part of their publiccompetence while private associations give up a part of their privateautonomy. Thus “private” associations take over governmental activities whichin their view, were not functioning well (Teubner 1993: 570, emphasisadded).

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The impact of polycorporatism on traditional government is apparent intwo distinctive ways. (1) Privatization of public policy, where the stateincreasingly recedes into the background in the public policy arena, asprivate corporations incrementally gain in experience and prominence inproviding solutions for a host of social and economic problems. (2)Verstaatlichun (absorption into the state) of intermediary organizations, inwhich the role of intermediary organizations no longer consists solely ofrepresenting pluralistic interests. They also participate in governance, bothas fully fledged participants in public policy deliberation and theimplementation of state decisions and in time as an autonomous self-administrator of public affairs (Teubner 1993: 559).

This short discussion proposes that the unitary concept of governmentalsocial control, though existing in theory is universally violated in practice.The understanding of government as a unitary authority has beenconveniently disregarded when prevailing political, economic, and socialconditions call for its jettison. It also highlights the need for Black toinvestigate the behavior of law associated with relative or more or lessgovernmental social control. It is necessary at this point to remindourselves of Professor Max Rheinstein’s penetrating observation that socialphenomenon is not absolute but relative.

After all modern science could not achieve its spectacular results untilthe phenomena to be observed had been described, classified, andsystematically arranged for ready reference…In social science it alsoseems at first glance that we know those phenomena whose inter-relations we are trying to unravel. We think that we know the species of,let us say, political organization … but let us try to define the exactborderline between monarchy or republic…None of these questionscan be answered for the simple reason that clearly defined species donot exist in the realm of social phenomena … What we find aremixtures … The question is always one of more or less, or one of definingthe position of a concrete phenomenon upon a scale of infinitetransitions between the two extremes or clear-cut polarity (Weber 1954:xxvii–xxvii, emphasis added).

More or less governmental social control is a fact of life [11]. This isparticularly so with our research site in Qing China. When private partiestake part in governmental social control, e.g. private security, they areengaging in governmental social control of a sort. When private parties aregiven the legal authority to maintain social control, e.g. family discipline inChina or chartered associations in England, they are law deputies. Whenthe government gets involved with or participates in private social control,e.g. organizing community policing, the private social control takes on thecolor, authority, and characteristics of the government.


A Restatement of Black’s Concept of Law II: Law as More or LessGovernmental Control

The idea of more or less governmental social control can be adequatelycaptured by two concepts: delegation of governmental social control rightsto private parties and government sponsorship of private social controlmeasures.

More or less government by delegation of social control rights

More or less government in social control can result from the affirmativedelegation of social control rights and responsibilities. Delegation of socialcontrol rights (and responsibilities) [12] is a further redistribution ofconstitutional rights [13]. They are rights conferred upon or acknowl-edged to exist in a private party by the state to take part in governmentalsocial control, e.g. family discipline or clan rule in traditional China, sheriffdeputies in the Wild West, and private policing in the modern U.S.A.[14].

Depending on the scope of delegated control, extent of delegatedauthority and degree of supervision over delegation, i.e. social controlresponsibilities (jurisdiction), powers, and accountability, the delegatedparty acts more or less like an autonomous government, more so with abroader delegation (more and more significant responsibilities, bigger andmore powers, and lesser accountability) and less with more restricted andless significant responsibilities, smaller and lesser powers and moreaccountability.

Social control authorities consist of three types. In decreasing order ofauthority, they are: authority to define social norms, authority to establishsocial norms, and authority to enforce social norms. These correspond toour western notions of legal policy setting, law making, and law execution(which broadly encompass law enforcement, prosecution, adjudication,and punishment).

For further development of a theory of more or less governmental socialcontrol, it is necessary to develop some kind of social control index. In thisregard it is necessary to consider the following.

(1) The interplay between responsibility, power, and accountability indetermining more or less governmental social control.

(2) The interplay between defining, establishing and enforcing socialcontrol in determining more or less governmental social control.

(3) The relationship between (1) and (2) in determining more or lessgovernmental social control.

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Social control index scores are defined as follows. SC = social controlindex [15]; SC3 = most social control; SC2 = some social control;SC1 = no social control. The total possible SC score is 27 = the mostgovernmental social control or approaching autonomous government, i.e.a sovereign state.

Below is a sample case analysis using these index scores of more or lessgovernmental social control (see Table 2) for a traditional Chinese familyhead over his family [16] (Qu 1981: 5–27).

(1) A traditional Chinese family head in imperial China has the broadestresponsibility in defining (A) social control for its family members(A = SC3).

(2) A traditional Chinese family head in imperial China has the broadestresponsibility in establishing (D) social control for its family members(D = SC3).

(3) A traditional Chinese family head in imperial China has the broadestresponsibility (G) in enforcing social control for its family members(G = SC3).

(4) A traditional Chinese family head in imperial China has a lot ofpower (B) in defining social control for family members(B = SC3).

(5) A traditional Chinese family head in imperial China has some power(E) in establishing social control for family members (E = SC2).

(6) A traditional Chinese family head in imperial China has a lot ofpower (H) in enforcing social control for family members(H = SC3).

(7) A traditional Chinese family head in imperial China has very littleaccountability (C) in defining social control for family members(C = SC3).

(8) A traditional Chinese family head in imperial China has a lot ofaccountability (F) in establishing social control for family members(F = SC1).

(9) A traditional Chinese family head in imperial China has someaccountability (I) in enforcing social control for family members(I = SC2).

Table 2. A model for assessing more or less governmental social control

Responsibility Power Accountability

Define A (3) B (3) C (3)Establish D (3) E (3) F (3)Enforce G (3) H (3) I (3)


From this sample case analysis it is possible to conclude that a traditionalChinese family in imperial China scored 23 SC points, three index pointsshort of the maximum of 27.

More rights of social control mean more power sharing with thedominant political authority and in turn power domination over subordinatesocial subjects. In Black’s terms, power sharing with an established politicalauthority means more law for a political inferior. Power domination overanother social equal means less law for the dominating social equal. Powersharing is manifested in negotiation for control as ‘give and take’. Lesserpower allows for negotiation over a particular outcome, while more powerallows for negotiation over general substantive law. Power parity allows fornegotiation over procedural law. Power domination (from more to less) ismanifested in the imposition of decision-making norms and process rules,as well as results [17].

The question that remains is whether Black’s social theory of law can bestretched to accommodate this political analysis of power and control. Ifnot, there is a need to define the limits of Black’s theory of law, possiblywith a caveat (scope) statement that Black’s theory only applies within orinternal to a settled political order with a dominant government socialcontrol system. As Black’s theory of law is social in nature, it predicts andexplains social, not political, control. However, there is no conceptualbarrier stopping Black’s theory of law from being applied to the politicalanalysis of distribution of social control power.

Delegation of governmental social control and the behavior of law

If we acknowledge that governmental social control powers can bedelegated, the important theoretical question for Black to resolve is howlaw behaves when governmental social control is exercised by privateparties [18]. This is still unknown, but two things at least are certain. (1)Delegated government social control will behave differently from tradi-tional governmental social control. This is simply saying that differentrealms of the law have different elasticities of the law schedule (Wong 1995:219). (2) The differences between delegated governmental social controland governmental social control are at their greatest when there is verylittle delegation. However, when delegation of social control approachesthe maximum, the differences between delegated social control andgovernmental social control again widen. The reasoning behind this issimple. Little delegation attracts little supervision, accountability, andcontrol. Broad delegation calls for continuous supervision, strict accounta-bility, and maximum control. However, when delegation of social controlpower is total, the delegated party shares in social control with thedominant political authority, as it acts independently of the dominant

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political authority. If a private party has absolute social control, it is able toestablish, enforce, and adjudicate upon social control norms under itscharge. This means wide discretion and very little accountability. Theprivate party becomes ipso facto an independent governing party in its ownright, i.e. an autonomous sovereign (Wong 1998a).

Delegation of governmental social control: the case of the Kongfu household [19]

For the purpose of this study, Kongfu (Confucius) household self-government is a prime example. In China, the Kongfu was first amongstequals in ethical matters [20]. In order to honor Confucius, and set anexample for the people to emulate, the descendants of Confucius (Kongzi)were conferred the title (Cifeng) of Yanshenggong by Emperor Song Renzon(960–1279) in the second year of Zhihuo (Kongfu dangan xuanpian 1982:1114). The title was affirmed by the Emperor’s decree on the eleventh dayof the eighth month of the Dai Ming Yuanwu yuannian (Kongfu danganxuanpian 1982: 2). The memorial to the throne (zoushu) “Pingding shandongsier ce” (“Ten strategies to pacify Shandong”) was provided in item 7 to“Zhong shengxue” (“Revere the sage learning”). It stated:

The historical sage (xiangsheng) Kongzi is the ancestor of eternalConfucius orthodoxy (wanshi daotong). In the beginning of our dynasty,all our cardinal guides and constant virtues (gangchang or morespecifically sangan wuchang) [21] were developed from this. Li calls fordecreeing (chi) that officials should revere sacrifices (si), reinstatingthe titles (feng) of Yangshenggong and sishi xuebao (Kongfu danganxuanpian 1982: 2).

From early history, the Kongfu household occupied a unique position inChinese history. Generations of emperors deferred to it; local officialsfeared it. It was given special authority, e.g. the head of Kong’s householdcould nominate local officials without being objected to, and special rights,e.g. exemption from certain taxes and corvettes.

More significant for our purpose, the Kongfu household enjoyeddelegated rights of self-government and social control. These included:hereditary nobility, management of property, the right to appoint officials,the right to levy tax, the right to select local magistrates, the right to governits household members and charges, the right to establish conduct normswithin its household and over its property, the right to discipline andpunish its household members, charges, and intruders, the right to protectits vested interests and the right to mediate between its members and theoutside world. Officials approached, communicated, and dealt with theKongfu only with special permission from the emperor (Kongfu danganxuanpian 1982: 2).


The conclusion is unmistakable; the Kongzi household played asignificant role in social control matters through independent moralleadership and by virtue of delegated governmental social control powersfrom the emperor. As a result it shared in social control responsibilitieswith local officials, as a ‘private government’ unto itself. The delegation ofsocial control powers and sharing of social control responsibilitiesmaterially affected the behavior of the law in two ways. The Kongfupossessed more law over the commoners (Kongfu dangan xuanpian 1982:ch. 3, 4, 6) and received less law from the officials [22]. The relationshipof the Kongfu to the Chinese Emperors resembles closely (if notduplicates) that of the kings and lords in mediaeval Europe:

In Western Europe … they [lords] were no longer ordinary subjects,but possessed economic and legal privileges, granted or accepted bythe sovereign … They were considered outside the general subordina-tion of subjects … by the very terms of investiture. They owed fealty,counsel and aid, but in return were exempted from all obligations andimpositions. They represented and personified both the population oftheir territories in their relationships with the sovereign, and publicauthority within their territories (Marongiu 1968: 24).

More or less government through sponsorship of private social control

More or less government social control due to state sponsorship of privatesocial control activities is state participation in private social control. Statesponsorship means state countenance, approval, endorsement, promotion,sanction, and/or enforcement. State sponsorship can be in the form ofpassive endorsement or active involvement corresponding to the twoextremes of sponsorship, i.e. from minimal endorsement to maximuminvolvement.

Passive endorsement includes countenance, approval or endorsement.Countenance is implied acceptance, demonstrated by knowledge of privatesocial control and failure to act. Approval is expressed acceptance,demonstrated by formal acknowledgement of private social control.Endorsement is positive acceptance, i.e. acceptance plus quality assurance,and is demonstrated by certification or recommendation.

Active involvement includes promotion, sanction, or enforcement.Promotion is active development, i.e. steps taken to facilitate theestablishment, maintenance, growth, expansion, and improvement ofsocial control, including enabling legislation but falling short of makingavailable legal sanctions for private control enforcement. It is measured byefforts contributing to development, e.g. making available materialresources or advice. Sanction is making available legal punishment forprivate social control. Enforcement is directly participating in social

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control activities through the exercize of state social control powers andinstitutional authorities.

State sponsorship can attach to various aspects of the control activities:origination, conceptualization, construction, organization, implementa-tion, supervision, monitoring, and control.

Government through sponsorship of private social control and the behavior of law

The behavior of law must be contingent on the degree of governmentsponsorship (Table 3). This is not hard to explain. Black’s theory predictsthe behavior of law (governmental social control) using five socialvariables. Take the example of effect of culture on governmental socialcontrol. The social effects of culture (measured as education) on law (e.g.criminal law) are dependent on the behavioral tendencies of law violators(criminals), law users (victims) and legal agents (officers of the law —police officers, prosecutors, judges), which in turn are conditioned by thesocial attitudes of all these people, either as a class, or as individual socialmembers, towards the functions and utilities of law. Government sponsor-ship of social control programs (Guardian Angel vs Neighborhood Watch)and activities (private revenge vs self-defense), depending on the degree ofgovernment endorsement or involvement, necessarily have an impact uponand influence differently the constitution, content, nature, direction andexercize of such private social control. Changes in constitution, content,nature, direction, and exercise together transform the character of socialcontrol, which in turn affects social attitudes towards law and determinesthe rate and manner of utilization of such social control. A transformedcharacter of social control contributes to the change in its behaviorpattern.

From a practical point of view, minimal government endorsement ofsocial control implies self-discipline and autonomy and maximum govern-ment involvement requires imposed restrictions and proposed direction.As the degree of government sponsorship in a social control programincreases, it takes on more and more government characteristics and lessand less private idiosyncrasies. In the end, when government involvementis total, it is fully integrated into the governmental social control apparatus.In more simple terms, what Black predicts with his theory is law as‘governmental’ social control: when the character of ‘government’changes (incrementally), so would its behavioral tendencies.

A more difficult question is what degree of government involvement inprivate social control qualifies it as governmental social control. Inasmuchas the idea of more or less government is not provided for by Black, thequestion cannot be answered. However, an answer can be provided inprinciple from Black’s theoretical assumptions and logical structure.


Table 3. Governmental sponsorship of private social control Ñ ananalytical framework

Theoretical concepts Operational deÞnitions Example (ideal type)

Government endorsementEndorsement Ñ the extent toNeighborhood watch(passive sponsorship) which the government (Garofalo & McLeod

accepts and approves of the 1989: 326Ð344)existence of private socialcontrol or self helpCountenance Ñ the extent Vigilante, self-helpto which the government (Perry & Pugh

1989:tolerates the existence of 129Ð131)private social controlApproval Ñ the extent to Guardian Angelwhich the government (Pennell, Curtis &tacitly acknowledges the Henderson, 1985)existence of private socialcontrolEndorsement Ñ the extent toCommunity watchwhich the government explicitlyapproves of the existence ofprivate social control

Government involvement Involvement Ñ the extent to Family disciplineover(active sponsorship) which the government juvenile

actively participates in bringingabout the private social controlschemePromotion Ñ the extent to ÔCrime StoppersÕwhich the government takes (Rosenbaum, Lurigiosteps to establish, maintain,& Lavrakas 1989:expand, or improve the 401Ð420)private social control schemeSanction Ñ the degree to Non-intervention inwhich the government made domestic abuseavailable legal sanctions and (Hirschel et al.

1992:resources for private social 247Ð283; Berk &control Loseke 1981:

317Ð348)Enforcement Ñ the degree toFamily discipline

overwhich the government actively juvenile

(Lundman,

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Black’s theory predicts the behavior of law as ‘governmental’ socialcontrol, determined by overall governmental involvement. However,Black’s theory is not capable of predicting private social control,determined by extra-governmental considerations. In order for Black’stheory to be able to predict private social control, government must beinvolved to such an extent that the private social control takes on sufficientgovernmental characteristics to be influenced or determined by it. Howmuch government sponsorship is required to transform a private socialcontrol into a government one? This is a theoretical as well as an empiricalquestion. Suffice to say that government sponsorship cannot be de minus(Adler, Mueller & Laufer 1994: 174), i.e. that it can have no discernibleinfluence on private social control, substantively or as perceived [23].

Government sponsorship of private social control: the case of Confucius ethics

For the purpose of illustration, Confucius ethics are a prime example.Traditionally, Chinese society promoted a social order with ethics andeducation instead of law and punishment. Ethical precepts were animportant norm-setting and social-control device. The imperial policyreiterated and reinforced Confucius teachings (Shih-chao sheng-hsun1616–1874: 2407–2538). The state law incorporated Confucius ethicalprinciples in full by giving force and effect to his behavioral norms. Stateofficials look towards Confucius ethics as binding decision-making norms(Huang 1699), and the people are guided in their conduct with referenceto the Confucius ideal. In Chinese society moral principles and legal ruleswere inseparable (Wong 1998: 67–147).

Qing law followed the Confucius admonitions; a process commonlyalluded to a Confucianization of the law (Ch’u 1956; Wong 1998c).Confucianization of the law meant different things to different people. Toa Confucius scholar, it meant the following. (1) Substantively, legal rulesshould be based entirely on Confucius precepts. (2) Procedurally,Confucius teachings should be used as the main, if not even the sole, socialcontrol device. Legal rules and punishment should only be used assecondary devices, or as a last resort. (3) When Confucius principles comeinto conflict with legal rules, people should follow Confucius principles. Toa legalist, however, it meant: (1) Substantively, legal rules shouldincorporate important Confucius principles when appropriate. (2) Proce-durally, legal rules operate independently of Confucius teaching. (3)Confucius teachings should not stand in the way of legal rules (Bodde &Morris 1967).

In both cases, law incorporated Confucius ethical principles andConfucius ethics were supported by law. For example, violations of rightsattracted moral condemnation as well as legal punishment. Failures to


protect, support and listen to parents were subject to family discipline aswell as legal sanctions (Ch’u 1956, ch. 1).

Issues arising from the Restatement of Black’s Concept of Law

My restatement of Black’s concept of law raises a number of methodo-logical issues and still more theoretical implications. Firstly, and mostimportantly, should a restatement be attempted at all? Is it anticipated byBlack’s concept? Is it required by Black’s theory? Is it consistent with Black’soriginal intent? Secondly, the restatement emphasizes the intractabledebate between legal pluralism and legal monoism. Can a monolithictheory with a sociological concept of law be made to accommodate legalpluralism? I will address each issue below.

Issue one: the problems with restatement. To restate or not to restate?

There are a number of objections to restating Black’s concept, such aswhether it is necessary or appropriate to attempt a restatement assuggested here.

Is the idea of more or less government anticipated by Black’s sociological definitionof law? By anticipation I mean it is within the contemplation of Black’stheory. In the strong sense it means intended by Black. In the weak senseit means not intended, but Black could have foreseen such an application.If the idea of more or less government is anticipated by Black, myrestatement is no more than a clarification, i.e. manifesting what is impliedand latent. If anticipation is established as claimed, there is no need tojustify the restatement of Black’s concept since there is no attempt tochange the substance and content of Black’s theory. Anticipation isbackward-looking; it rests its justification for clarification of a theory(concept) on the content of the theory and intent of the author. Ratherthan justifying the substance of change, one needs to argue for thedynamic potency, elastic scope, and expansive reach of an existing theoryor concept which anticipate the change as suggested!

However, anticipation as a justification for restating a theoretical conceptis fraught with danger, especially the temptation to read too much into theoriginal theory/concept to be restated, or worse yet, to misread,intentionally or unconsciously, the intent of the author. As any good lawyercan attest, however strong the circumstantial evidence, intent is always afigment of the imagination. Similarly, as any competent psychiatrist candemonstrate, mental illness is more a judgment than a fact. While Freud

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found sexual impulses everywhere, Skinner saw only conditionedbehavioral responses.

In this instance, anticipation is justified because Black manifested anintent to escape from the conceptual confines of analytical jurisprudenceby adopting a sociological definition of law. By this, Black hoped toseparate the legal experiences in the street from any formal definition ofthe law in the books. Black’s strategy of escaping from the formal into thereal by adopting a users’ definition of law (law in the street, law derivedfrom below) rather than a formal definition of law (law in the books, lawimposed from above), should equally apply to a sociological definition ofgovernment.

Government as a conceptual entity (constitution, authority, legitimacy)is not a fixed idea. It is rooted in culture and shaped by it. Government asan empirical reality (goals, powers, functions) changes with time, people,and place. It takes on the color of the society which it is a part. Blackprovides no definition of government. His descriptive definition isdeliberately non-defining to capture what society and culture has installedin it. If he had confronted the issue of more or less government he surelywould have embraced it within his original definition of government. Likelaw, government does not exist in the books and amongst historians, it livesin the street and within the common people.

Is the concept of government sponsorship of private social control consistent withBlack’s governmental social control? By consistent I mean the concept of moreor less governmental social control is compatible with and otherwise notoffensive to Black’s original conceptual scheme and theoretical framework.To claim consistency with Black’s concept of government is not to venturean opinion as to whether the restated concept is required or anticipated byBlack in the original concept. It is the lesser claim that any restatementattempted will not do an injustice to Black’s original theory in spirit andsubstance. This is the minimum requirement for any modification ofanother’s theory or concept. Any restatement of an original theory must beconsistent with the original, i.e. it must not defeat the underlyingassumptions and theoretical structure of the original theory.

The introduction of the idea of more or less government and theinterjection of a concept of sponsorship expands Black’s original conceptof law to include more social control experience without harming itsoriginal theory. A concept of government which is capable of expansionand contraction in accordance with the understanding and expectations ofthe people who are under its charge and subject to its control is certainlynot inconsistent with Black’s idea of a government as a sociological quaempirical conceptual entity.


Is the restatement of Black’s concept of law required to realize Black’s scientific theoryof law? To claim that a restatement is required by an original theory is thestrongest case for restatement. It implies that not only can a theory orconcept be improved, but that it must be reformed to make it conform withcertain objective criteria, e.g. logical or empirical requirements.

In this case restatement is required because the logical definition ofgovernment should be extended to cover any and all social control thattakes on the color and characteristic of a formal government. There is nological reason why government social control should stop at the door of thecourt house and not extend to the family room of a local village chief.There is no empirical reason why, when most of the government socialcontrol functions are performed by deputized private parties in QingChina, their behavior should be left unexplained by Black’s theory.

Issue two: legal monoism vs legal pluralism — for whom the bell tolls?

The larger theoretical discourse of importance here is the differencebetween legal monoism and legal pluralism (Pospisil 1971; Griffiths 1986:1; Merry 1988: 869–896). I am a pluralist while Black is a monoist [24].

It is common to think of law in unitary and monolithic terms. Thus, tomost people in the street, law is state criminal law. Even to positive juristsand consensus criminologists, law has variously been considered asnaturally derived, neutrally designed, morally correct, legitimatelyimposed, positively made and negatively enforced. This classical image oflaw, first challenged by the Marxists at the end of 19th century, was laterdisputed by the pluralist anthropologists in the 1950s, attacked by conflictcriminologists in the 1960s and 1970s, disavowed by critical jurists in the1980s and totally rejected by post-modernists of all kinds in the 1990s.

Legal pluralism states that law has many faces and realms of existence. Itclaims distinctive origins, appeals to conflicting sources of authority,attracts varying degrees of support, serves a variety of purposes, caters to amultitude of populations and imposes order in a mixed bag of commu-nities, but more significantly, law has different behavioral patterns, i.e. itpossesses elasticity [25].

The Chinese have long recognized the need for and utility of a multiple,overlapping and interlocking, complementary and supplementary socialcontrol systems organized along strict ethical/ideological (Confucius)lines with the state/government more or less involved. The web of socialcontrol occupied different realms. Chinese law was horizontally differ-entiated, separated by geography (central vs. local), organization (bloodfamily vs. trade association) and functions (criminal vs. civil law). Chineselaw also operated at different levels, with hierarchical authority denomi-nated in spiritual, moral, ideological, or organizational terms.

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Confucius ethics, imperial order, state law, official administration, clanrule, and family discipline appealed to different authority bases andapplied to separate membership groups. Li as an ethical social controlapplied to the cultured and educated, e.g. scholars and officials.Punishment as a penal social control applied to the common people, orpeasants, and the insane. Naked force as a military control applied toforeigners and enemies. In more secular terms, Confucius ethics were thelaw of the sage, imperial order was the law of the officials, state law andofficial rule were the laws of the common people and clan rule and familydiscipline were the laws of intimate associations.

The social control (ethical and ideological) principles were establishedand imposed from above. The behavioral norms (social regulations andconduct norms) were set forth and implemented from below. Each level ofgovernment social control — Confucius ethics, imperial order, state law,official administration, trade association/blood clan instructions, andfamily discipline — spoke with ever increasing degrees of detail,specificity, and concreteness as they registered less and less governmentinvolvement, control and influence.

Black provides for a general theory of law, one which on the surface doesnot recognize legal pluralism, e.g. multirealms or multilevels of law.However, Black’s theory expressly provides for different realms of socialcontrol, e.g. informal (family) vs. formal (legal) control, and implicitlyrecognizes different levels of law, e.g. apprehension vs. prosecution vs.adjudication vs. appeal. Informal social control is supposed to complementgovernmental social control (law), e.g. the more informal social control(family), the less governmental social control (law). The behavior of law isdifferent at different stages of the legal process, and each different level oflaw has its own existential integrity. This raises the distinct possibility thatthere may not be a general theory of law, as there are many theories of lawwhen applied to multiplex law with different behavioral tendencies.

Summary and Conclusion

A careful review of the critical literature and an independent analysis ofBlack’s theory shows that Black’s sociological concept of law is problematic.The key term of government is not clearly defined, and inadequate whenapplied. It fails to capture substantial and important social controlmeasures in China, such as Confucius ethics. In all, Black’s concept of lawruns counter to his original intent of developing a global theory of lawpromising to be sociologically informed and universally applicable.

In line with my critical assessment of Black’s concept of law, I feel theneed to restate Black’s concept of law in order to improve it. I have statedthree reasons for doing so. (1) Black’s concept of law is not clear


conceptually and is inadequate when applied. (2) The restatement of lawas more or less governmental social control fits better with Black’s originalintent of developing a sociological and general theory of law. (3) Therestatement is necessary to capture the unique organization of govern-mental social control in Qing China, i.e. a system of social control with thegovernment at the center and families acting as its external agents.

My restatement of Black’s concept of law improves upon Black’s originalconception by providing for a definition of law as governmental socialcontrol which recognizes the empirical reality of more or less governmentresulting from the delegation of government social control rights orgovernment sponsorship of private social control.

In theoretical terms, this research makes two significant advances. First,it improves upon Black’s concept of law by introducing the idea of more orless governmental social control. This restatement of Black’s concept helpsto capture different manifestations of governmental social control inChina, i.e. government delegation of social control rights (Kongfu) andgovernment participation in private social control (Confucius ethics).Second, it hints at the existence of multiple government social controlsystems with different organizational principles in Qing China.

Before I end this paper, a note on perspective is in order. Criticalassessments should be acknowledged for what they are, i.e. critical. Often,they do not address adequately the merits and contributions of a theory orconcept. My critical comment of Black should in no way be considered adetraction from Black’s theory of law in general, and the concept of law inparticular. Black’s theory of law has greatly benefited the discipline byraising its scholarly horizon, and me personally by expanding myintellectual vision.

Sherman best summed up Black’s contributions and my approach to thiscritical exercise.

Black has set a formidable task for sociologists of law. We must subjecthis propositions to rigorous examinations — criticize, operationalize,revise, and reformulate them. It would be a disservice to both Blackand the research he drew insight from to let the theory of law stands asa gleaming monument. Much more data is needed, particularly in therealm of legal change over time. But whatever the substance ormethod, social research on law cannot ignore Black. Implicitly orexplicitly, it will engage in a dialogue with him for some time to come(Sherman 1978: 15).

In closing, I would like to cite Toch for his insights into how to assess abook or theory, which succinctly capture my sentiment of Black’s theory oflaw.

106 K. C. Wong

The classroom makes many of us cynical which some teachers think ofas being smart. We are taught by such teachers that most contributorsto the field tend to overlook the obvious and to make technicalerrors… If one has been brought up in this way it becomes hard toconceive of falling in love with ideas, which requires suspension ofjudgment. The point of loving is to appreciate what one encounters,not to deplore its imperfections…” (Toch 1990: 248).

Whatever is said here, I am in love with Black’s theory of law (Toch). Forthat reason, I am driven to make it better (Sherman).

Notes

1 This question tangentially implicates, without directly pointing out, thefundamental deficiency of Black’s concept of law, i.e. what are the definingtheoretical characteristics of a so-called “governmental” social control. Itraises questions such as: (1) How do we separate a duly constituted orinstitutionalized government from one which is not? For example, is aprimitive society with a governing council of chiefs a government? Is arevolutionary regime on the verge of overthrowing the dominant politicalpower a government? Is an Italian ‘mafia’ or Chinese ‘triad’ gang rulingfaction, allowed by the police to persist, a government? If not, how are we toseparate one type of functional governance from another? (2) What aredeemed to be proper governmental capacities, functions, and/or powerssuch that when they are assumed or exercised, they give the exerciser theimprimatur of a so-called government?

2 Black’s theory of law, as a general theory, is capable of explaining thebehavior of law with different government units. Black, however, does notdeem it important to discuss the possible relationship of intragovernment(administrative and political divisions) and inter-government (confederategovernment and separate sovereignty) division of social control powers withthe behavior of law.

3 See the case of Commonwealth v. Plaisted, 148 Mass. 375 (1888). A SalvationArmy member was arrested and fined under ch. 323, States of 1885. TheSupreme Court of Massachusetts, upon exceptions, held the state law to beconstitutional.

We find no provision of the constitution to which it conflicts, andwe cannot declare an act of the legislature invalid because itabridges the exercise of the privilege of local government inparticular in regard to which such privilege is not guaranteed bythe constitution … The powers and duties of all the towns andcities, except so far as they are specifically provided in theconstitution, are created and defined by the legislature, and wehave no doubt it has the right in its discretion to change thepowers and duties created by itself…


4 For a different thesis of the genesis of local power before formation of thestate (Harvard Law Review 1900: 441–454; People v. Draper, 15 N.Y. 532, 537(1857).

5 American historical legacy, political ideology, Constitutional doctrine andgovernment policy favors indigenous rule from grass roots (Frug 1980:1057–1157).In most states, municipal incorporation law makes the incorporation processan easy administrative routine. States’ general enabling statues place thepowers of incorporation in the hand of the local residents. Incorporation canbe initiated by the signing of a fixed percentage of petitions by the localresidents. In almost all cases, judicial and administrative review is onlyminimal, e.g. fulfilling formal filing requirements. The law allows for verylittle local discretion. The principle requirement is that the incorporatorsprovide a map describing an area of contiguous unincorporated landcontaining a population greater than the statutory number, usually fairlysmall (Briffault 1990a: 74–75).Other requirements include: population concentration, community ofinterest and urban land (Briffault 1990: n. 314, p. 75). Courts have treatedthe local desire for municipal government as revealed by incorporationpetition/request. The petition also satisfies the issue of local benefits fromincorporation (Mandelker 1958: 276–289). The courts were also disinclinedto use the lack of ‘community of interest’ as a substantive standard (e.g. lackof common stores, business, school, or social cultural amenities) (State ex rel.Stephens v. Odell, 61 Wash, 2d. 476, 378 P. 2d. 932 (1963)). Incorporation maybe based on a desire to maintain ethnic, cultural, and economic integrity.According to the 1982 Census of Governments, the minimum population forthe incorporation of a municipality was 75 in Alabama, 100 in Nebraska, 150in New Mexico, Oregon and Wisconsin; 200 in Tennessee, and 250 in Nevada(see Bureau of Census, U.S. Dept. of Commerce, 1982 Census of Govern-ments 105, 237, 254, 281, 333, 303, 241 (1983)). In those states that classifytheir municipalities according to population, it takes as few as 1000(Oklahoma), 2000 (Colorado, Mississippi) and 2500 (Illinois) inhabitants tobe incorporated as a city. In Arkansas, the minimum population for a first-class city is 2,5000 (Ark. Stat. Ann. S 14-37-103 (1987)); in Kansas, 15,000(Kan. Stat. Ann. S13-101 (1982)); in Nevada, 20,000 (Nev. Rev. Stat. Ann.S266.055); in S. Dakota, 5,000 (S.D. Codified Law Ann. S 0-2-1 (1981)); inVirginia, 10,000 (Va. Code Ann. S 15.1-1011 (1981)); and in Washington20,000 (Wash. Rev. Code Ann. S35.22.010 (1965)).Liberal political philosophy, lax incorporation requirements, and minimalstate supervision make localism vibrant — any association of people canincorporate and become a government unto themselves. This poses a greatthreat to the central government and coordinated administration.The census tells the story of poly-center/grass-roots rule in Americangovernment. In 1982, 43,439 of the 82,000 local governments were specialdistricts or school districts. An additional 16,734 local units were townships,which functioned as limited subdivisions of counties. There were 19,076municipalities and 3041 counties. (n. 9, 1 Bureau of Government, 1982Census of Governments 3, table 3). More than three-quarters of the

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municipalities have fewer than 5000 people, and less than 500 have apopulation greater than 50,000 (1982 Census of Governments 1983, n. 324,p.77).

6 The Dutch East India Company was chartered in 1606 to break up thePortuguese monopoly of trade in the East. The Company was run by a boardof 17 directors from powerful trading firms and commercial houses. TheCrown exerted little effective control over the Company; even the renewal ofCompany Charter was exercised in a perfunctory fashion. Initially, theCompany had few territorial ambitions. However, the Company was forced toannounce their presence in the region to monopolize the trade in the areaeffectively, e.g. the Cape of Good Hope in Africa, Calcutta in India, Baraviain Java, Cochin in Malabar, and Bengal in Ceylon. The Company wasinterested only in trade administration not political governance, though ithad the power to make laws, control commerce, administer justice, anddeclare war on non-European nations. The Company was held in check by acouncil of justices staffed by rotating junior officials, which was involved onlywithin Company law-and-order problems. The council was also able onoccasion to override the autocratic rule of the governor-general of suchoverseas trade posts. With respect to the domestic population, the Dutchpolicy was to promote indirect rule. Dutch colonial history states that: (1) theDutch East India company was vested with great governmental social controlpowers in penetrating overseas market; (2) the Dutch East India Companyacted on behalf of the state in overseas commercial matters with very littlesupervision and control; (3) internally, to the company staff, and externally,to the alien population, the Dutch East India Company was for all intent andpurpose the Dutch Government. For a brief discussion of Dutch, English,and French companies in the East, see Fieldhouse (1965: 143–146).

7 There was no central government authority or office in charge of colonialaffairs, which is revealing of the nature of state and private partnership ingovernment. (1) Commercial and trade associations were considered expertsin overseas trade and, by extension, foreign and diplomatic affairs. They werenaturally trusted to represent British interests abroad. (2) Commercial andtrade associations’ commercial interests in securing overseas trade coincidewith the British Empire’s international ambitions. (3) Commercial and tradeassociations were economically rich and politically powerful. Traders andmerchants served the government in a private capacity and occasionally asgovernment servants. Private acts received public recognition. Public officeenhanced private business. The line between private and public domain andpersonal and official capacity was never clearly drawn, nor was it considerednecessary to clarify the divide. (4) Much like the Church in the past, thecommercial and trade associations acted as natural political allies of theCrown, sharing in its power and glory. Government and private associationswere natural partners in government in overseas ventures.The Privy Council was responsible for Colonial affairs, including legislationand criminal appeals. However, actual control and administration of thecolonies was put into the hands of the commercial traders and merchants.During the reign of Queen Elizabeth I, the East India Company was set up in1600 to administer the largest Colony of the British Empire: India. In 1740


the British government was required to dispatch Regulars to reinforceCompany troops stationed in India. In 1773 His Regulating Act offered torepay the Company financial loss in return for control over the Company’sadministrative activities in India (Cannon & Griffiths 1992: 503–505).

8 Before 1769, no North European states owned any colonies in the East forthree reasons: (1) they had no resources for overseas domination; (2) theywere not interested in territorial conquests, only commercial markets; (3)overseas market development was best left to traders and merchants. Tradersand merchants formed joint-stock companies to monopolize trade andcorner overseas markets. States only interfered in the case of insolvency ortransformation of such an overseas company. The Royal charters involved inthe formation of the Dutch and British East India Companies gave thembroad and plenary powers to secure overseas territories and market,including the establishment of colonial governments (Fieldhouse 1965:144).

9 Kenis & Schneider argue that the movement towards a new polycorporatismbecame highly visible in 1980s because of: (1) the strengthening of the non-state formal organizations in different sectors of society; (2) the increasingsectioning and functional differentiation, resulting in ‘over-crowded’ policy-making; (3) the increased scope of state policy-making in diverse policyarenas without concomitant growth of necessary control capacities; (4) thedecentralization and fragmentation of the state; and (5) the blurring of theboundaries between public and private sectors resulting in trends of informaladministrative action (Teubner 1993: 570).

10 German policy makers proposed to control corporatist legal regime in anumber of ways. (1) Collective bargaining should follow imperativeguidelines laid down by the government. (2) The legal principles of thebeliehenen unternhemer (private enterprise with public tasks to which rules ofpublic law applies selectively) should be expanded far beyond the originalrange to cover more private association activities. (3) The actions ofassociations should be brought under government supervision and control.(4) The check on legality of private associations should be made through thecourts. (5) Parliamentary control and court supervision of associationsshould be achieved by the introduction of auditor system. (6) Associationsshould be brought under judicial or parliamentary control by legally bindingthem to a “public good” clause, the purpose of which is to convert privatecorporations into public ones (Teubner 1993: 571).

11 While more or less governmental social control as a ‘fact of life’ is amplydemonstrated, the more difficult question for Black and this researcher ishow does more or less governmental social control come to affect thebehavior of law. More pointedly how does the possession of more or lessgovernmental social control power impact upon the reception, mobilization,and enforcement of the law. This turns on how various configurations ofgovernment authority (feudalism, federalism, localism, colonialism etc) arebeing perceived and acted upon by the law users, i.e. the people may be moreinclined to report crime to the FBI than to the local sheriff in a jointoperation.

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There is a possibility that people’s reception of and reaction to law is drivenless by the degree of governmental social control powers than by people’shabituated relationship with the proximate government. If this is the case thebehavior of law will not be sensitive to any variation in or distribution ofgovernmental social control powers between governing units.

12 It is often assumed that with the delegation of social control rights comesocial control responsibilities or vice versa. This need not be the case. Thedelegation of social control rights and imposition of social controlresponsibilities are two entirely different governmental domain. Take thecase of children’s discipline and control as an example. Until very recently,and under common law, parents are given the rights and responsibilities todiscipline and otherwise control their children. Lately, the parental right todiscipline has been interfered with, e.g. laws against physical punishment,and the opportunity to control has been diminished, e.g. laws restricting(defining) parents’ rights on abortion consent. However, the parents areincreasingly being held civilly and criminally responsible for their children’smisconduct or illegal acts. The theoretical question which needs to beaddressed at some point is how the delegation of social control rights andresponsibilities, separately or together, affects the behavior of law. Forexample, what is the sociological significance to the behavior of law(exercising of parental discipline and control) of imposing on parents a setof children’s disciplinary responsibilities without giving the parents the rightto discipline? Can we expect more or less discipline? How might suchdiscipline be distributed in the social space?

13 Constitutional rights are also called fundamental, basic and organic rights. Asused here, they are rights pertaining to the structure of government,particularly the distribution of powers of government with respect to thepeople. If we conceived of the government being vested with the rights andresponsibilities to enforce law, i.e. secure governmental social control, to startwith, then any delegation of those rights and responsibilities, e.g. to make(legislative), enforce (executive), and interpret ( judicial) law amounts to aredistribution.In anticipation of Black’s objection, I agree that this formulation ofdistribution of governmental social control can be considered as undulypositive and restrictive in the face of Black’s sociological conception of lawformation. It focuses too heavily on government-‘made’ law. It fails torecognize that law is given by the state, e.g. having a court house, as well asreceived by the people, e.g. using the court room to solve dispute. It issuggested by Black that the latter may be more significant than the formerbecause the end purpose of any governmental social control system is thepeople and in a democracy the will of the people to use or not use the lawdetermines the amount and distribution of law in existence. However, tosuggest that the people have a vital or determinative role to play in thedistribution of incidences of social control, e.g. to report or not report acrime, is not to deny that the government can affect people’s use ormobilization of the law, e.g. police can make it more or less easy for thepeople to call the police. Given Black’s sociological definition of the law, thegovernment (or quasi-government) as much as the people have an equally


important role to play in the creation and distribution of governmental socialcontrol.I concede that in some rare instances, the government’s attempt to make lawmay be totally unsuccessful as a result of loss of credibility or deniedlegitimacy with the people, e.g. social control of victimless crime —gambling. But even then we do not say that the government has no role toplay in creating law or exercising social control; only that it is not as effective,e.g. the police can mount pro-active anti-gambling operations. Ultimately, Iunderstand Black to be saying that in the law business it takes two (or more)to tango and everyone affected by the law has an equal chance of shapingit.

14 Private social control is converted into governmental social control in twoways: through government sponsorship of private social control, andgovernment delegation of public social control rights. In the first case thegovernment lends its support to what is essentially a private activity. In thesecond, the government allows the private party to be deputized as a statesocial control agent. Where government participation ends, governmentdelegation begins.In Black’s theoretical terms, if we consider government as having all thepowers of (undifferentiated) control to start with, then private social control,to the extent that it exists, is at the sufferance of the state, e.g. self help.Government participation in private social controls imbues them withgovernment authority and makes them a proper subject for Black’s theory oflaw to explain. If this is the case, Black’s theory should have some relevancein explaining individual and collective self help which, in a heavily regulatedstate such as the U.S.A., is given various degrees of support (policedisturbance calls) and sanction (self-defense doctrine).

15 The SC index used here is illustrative and for heuristic purposes, rather thanone to be used in actual measurement. In constructing the SC index score Ihave arbitrarily determined a range for the SC variable (from most socialcontrol to some social control to no social control) and assigned equallyarbitrary possible values to each score (SC3, SC2, SC1). There are othermeasurement problems. (1) Conceptually more or less governmental socialcontrol is a continuous variable and should not be measured with a ratio orinterval measure. (2) To the extent that more or less governmental socialcontrol indices are measured along different dimensions with a ratio orinterval measure, a legitimate question is raised as to whether such ameasurement is truly additive and can be expanded using a global compositeSC index, e.g. is SC2 on the responsibility indictor comparable to SC2 on thepower indicator. (3) The SC index as designed does not measure the relativesignificance of the nature of social control authority — define, establish, andenforce and focus primarily on the implementation of such authority —responsibility, power, accountability. A true SC index should take both intoaccount in creating a weighted SC measure.

16 This kind of social control analysis should be based on empirical findings andprecise measurement.

17 In political and practical terms, the debate is between a rival (horizontal) anda dominant (vertical — central vs. local) relationship. In the rival case, terms

112 K. C. Wong

of engagement are negotiated, while in the dominant case, terms ofengagement are dictated. My insight is drawn in part from recent politicalsettlement talks over the return of Hong Kong to China, the absenteesovereign, after 1997 and the re-integration of Taiwan with China, themotherland, in the distant (or possibly near) future. A ‘one country — twosystem’ model is proposed for Hong Kong and ‘one county — two region’for Taiwan. Terms for the return of Hong Kong to the PRC were dictated.Terms for the reintegration of Taiwan with the PRC were negotiated (Weng1995: 23–33).

18 The need to extrapolate upon Black’s theory reveals once again the inherentlimitation of social structure theory. Structural theory is descriptive. It isdifficult to apply or extend a descriptive theory (without clearly expressedtheoretical foundation and articulated basic assumptions) to new situationsand altered circumstances. For example, Black’s theory states that law varieswith culture, but does not address the question of how and why culturecovaries with law (Sumner 1979: 113).

19 A caveat is in order. Given its stature in Chinese cultural life, Kongfu may bejust too unique a case to be used as an example. However, there was ampleevidence from Chinese law to suggest that the imperial Chinese governmentroutinely delegated its social control powers and responsibilities to privatecitizens or natural associations, e.g. to the father in the Chinese family (Qu1981: 5–48). For example, the Chinese father, as the head of the family, wasempowered to discipline his children for misconduct, including theinfliction of physical punishment. This is an example of delegation ofgovernmental social control power. Chinese parents also have the right torequest the local magistrates to support their decision to punish misbehavedchildren. This is an example of governmental sponsorship of private socialcontrol (ibid.: 7–10). A further attempt to assess the concept of “law as moreor less governmental social control” with Chinese data has been completed(Wong 1998b). I thank the reviewer for bringing this to my attention.

20 Confucius or Kong Fuzhi was born in 551 B.C. in the feudal state of Lu inmodern Shantung, China. Originally an official of the Zhou dynasty(1100–475 B.C.), he was later much disenchanted with the breakdown ofpolitical, social and moral order during the Warring State (475–221 B.C.). Heattributed the disintegration of society to a breakdown of the moral orderand rite system. In response to this he established the school of thoughtcalled Confucianiasm calling for the practice of ren (humanity) and thefollowing of li (rites). Confucianism has since been adopted as the Chinesephilosophy (Yu Yingshi 1984).

21 The feudal ethics code controlling the behavior of the ruler and constrainingthe conduct of the people consists respectively of the three cardinal guides(rulers guides subject, father guides son, and husband guides wife) and thefive constant virtues (benevolence, righteousness, propriety, wisdom andfidelity).

22 See the case of Liu Shangqi opening up waste land (kaihuang) vs. theKongfu’s (Confucian household) claim of the land as ceremonial plot( jitian) in the 31st year of Qianlong. (Kongfu dangan xuanpian 1982:107–126).


23 Another strategy is possible. This is to measure the behavior of law relative tothe degree of government involvement without separating public and privatesocial control. This comes close to Professor Griffiths’ formulation of DSCL(Griffiths 1984).

24 Black is not a classical monoist but a reformed one. While he rejects the ideaof a dominant legal institution, he nevertheless defines government inmonolithic terms. Governmental social control can be differently experi-enced, but the government is here to stay. There is one government and oneset of laws, but multiple law users who experience and mobilize the lawdifferently.I suspect Black will argue that his concept of government, like his sociologicaldefinition of law, is an open container made to fit the aspirations of the ruledthan the will of the ruler. His rejoinder, however, does not make Black apluralist, just a monoist with an open mind, hence, my description of him asa reformed monoist.

25 Elasticity of law is the adaptability of the law to changes in extra-legal socialvariables. Extra-legal social variables are social factors having a discernibleimpact on the behavior of law but which are not provided for oracknowledged by the law as deserving legitimate consideration. Extra-legalsocial variables have different potencies, depending on the realm or level oflaw they interact with or act upon.

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