Some Aspects of the Distribution of Grading Appeals In Three Dutch Law Faculties


This is a report of an examination of the judgments of appeal committies (beroepscommissies) in three Dutch law faculties: Groningen, Leiden and Utrecht. The examination was conducted in connection with a reading seminar in sociology of law whose subject was the recent book by Donald Black, TheBehavior of Law. The main purpose of the enterprise was to test that book in two ways: by seeing whether the general propositions in the book lend them-selves to the logical deduction of specific predictions about the “behavior of law” within law faculties, and by seeing whether such predictions survive confrontation with empirical fact. The purpose of reporting the results here is also twofold: to give a concrete and simple example of one approach to the sociology of law (of which Black’s book is the most important recent representative); and to recount some information which will likely appeal to the curiosity of anyone interested in the social organization of law schools. Both the “research” and this report of it are pretty crude affairs, and among other things I pass over in silence a number of theoretical and methodological problems in the interest of simplicity. I think that the power, and the difficulties, of Black’s approach emerge – despite these limitations – quite clearly.

Donald Black is a strict “positivist” in his approach to the sociology of law, and has become in recent years one of the most interesting and uncompromising exponents of the positivist approach. The label “positivist” can mean a dozen or more things, some of them quite contradictory of each other, and is mainly used nowadays as a term of abuse. What I mean by it here is what Black means, when he uses it to describe himself. The sociology of law is, in his view, an empirical science, essentially similar to any other empirical science. Its starting-point is the observation of variation in the empirical world.Like all other empirical sciences, the sociology of law consists of imposing order on that variation by establishing regularities in it. These regularities -or empirical laws – relate the value of one variable (e.g., frequency of cigarette smoking) to the value of another (e.g., risk of lung cancer). Such empirical laws (e.g., the “law” of gravity) permit one to predict and to explain the value of a dependent variable if one knows the value of an independent variable with which it is regularly associated. For Black, unlike many other sociologists of law (or lawyers who profess an interest in the relations of “law and society,”as it is usually expressed), the sociology of law has nothing to do with criticizing or evaluating the norms of a legal system, or the performance of such a system (e.g., in terms of its “effectiveness”); nor is its purpose to discover or to establish the “essential functions” of law and legal systems. Such objectives may be worthwhile in themselves, but they are fundamentally different from the scientific enterprise of explaining variation in empirical reality.

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