Encyclopedia of sociology by Edgar F. Borgatta, Rhonda J. V. Montgomery (z-lib.org)

COURT SYSTEMS AND LAW

——— 1977 ‘‘Countercultures and Social Change.’’ of Weberian categories (cf. Gluckman 1954;
American Sociological Review 42:833–853. Bohannan 1957, 1967; Howell 1954; Kuper and
Kuper 1965), even the classic moot (eg. Gibbs
——— 1982 Countercultures. New York: Free Press. 1963; Gulliver 1969), while classifiable as substantively
irrational since it subjects disputes to discussion by
Young, Kevin, and Laura Craig 1997 ‘‘Beyond White a whole village of involved or even merely curious
Pride: Identity, Meaning, and Contradiction in the onlookers, still follows definite procedures and is
Canadian Skinhead Subculture.’’ Canadian Review of guided by a mediator or authorized persons. See
Sociology and Anthropology 34:175–206. also Stone (1979) on miners’ meetings in the gold
rush Yukon; MacLachland (1974) on the tribunal
PATRICIA A. ADLER of the Acordada in eighteenth-century Mexico;
PETER ADLER and the People’s Courts in postrevolutionary Rus-
sia (Feifer 1964). The goal of the moot, as Gibbs
COURT SYSTEMS AND LAW notes, is not solely legal but is at least what he calls
therapeutic since the end sought is restoration of
Most sociological discussions of law begin with relationships and harmony. It turns out that goal is
Weber’s definition in which a specific staff is quite consonant with what we find in formally
charged with avenging norm violation or ensuring rational systems in the Western world. In any case,
compliance (Economy and Society 1968, p. 34). We- bases of all legal systems include: first, a reason-
ber’s goal was to distinguish law from morality and able certainty and predictability on which persons
convention, by which a whole community may act can depend, which, in practice, means no retroac-
to impose sanctions. He also developed his now tive laws (as Fuller 1969 notes); second, fairness,
classic typology of formal legal systems (those which comes down to treating like cases alike; and
limited only to legal as opposed to those legal third, justice should not only be done but be seen
systems he called ‘‘substantive,’’ based on relig- to be done, which means that there are no secret
ious, economic, or moral criteria) and rational decisions, and decisions are in accord with gener-
(those legal systems based on rules as opposed to ally agreed values, assuming they exist. These simi-
those involving use of oracles, oaths, and ordeals, larities are more important than the many varia-
for example). Although he was careful to call these tions in detail that can be found in different legal
distinctions ‘‘ideal-types,’’ that caution has not systems (cf. Pospisil 1958).
stopped persons from offering specific examples
that are actually mixed types, as in speaking of In what follows, we shall focus on the two main
‘‘khadi justice’’ (a term, unfortunately, used by systems of law, common law and Civil law, which are
Weber himself) as a prime example of substantively found widely in much of the world. In so doing, we
irrational decision making in which a Moslem can give only passing reference to such systems as
khadi sits under a palm tree and dispenses justice Islamic, Jewish, or Tibetan law, or to the many
according to his personal feelings or inspiration. subtle differences found in tribal law. To further
As Rosen (1989, ch. 1) shows, in actual cases he complicate matters, many national legal systems
observed, the khadi does not exclude any evidence are blends of other systems, especially as the result
but relies on witnesses, notaries, documents, and of conquest (as is the case in Japan, which took
any relevant evidence as well as testimony from over a German code but then had common-law
interested parties. His goal, as in Islamic law gener- features of public law grafted onto it after its
ally, is to ‘‘put people back in the position of being occupation by the United States in the 1940s). In
able to negotiate their own permissible relation- modern society, legal systems have become identi-
ships . . .’’ (p. 17; see Nader 1969; Starr 1992). He fied with the nation-state so that Canadian law
follows a careful procedure, although the conduct differs from American law, as does Scotch from
of persons in his court may appear to Westerners French law. Nevertheless, many can be said to
to be more informal and more disorderly than that share one of the two traditions we are considering.
allowed in a typical Western court. Although the two systems have been converging in
many respects, each is distinctive in outlook as well
While anthropological studies of tribal socie- as in court organization and the kinds of legal
ties have been shown to exhibit the whole panoply careers likely to be found.

464

COURT SYSTEMS AND LAW

The Civil law is by far the older, going back at her favor. As Simmel (1902; Wolff 1950; Caplow
least to the Corpus Juris Civilis of the Emperor 1968) shows, parties of three are inherently unsta-
Justinian in the sixth century C. E., though some ble, being liable to break down when two of the
scholars would trace it back to the 12 Tables of three form a coalition to defeat the third, a phe-
Rome, said to have been put together in 450 B. C. nomenon well-known to parents of small children.
E. This system is found throughout Western and
now Eastern Europe, most of Central as well as The third party may be simply a go-between
South America, and in many other areas in Africa who offers his services unasked in the interest of
as well as Asia, plus the state of Louisiana (for an preserving or restoring good relations. Or he or
example see Williams vs. Employers Liability Assur- she may, as Shapiro (1986, ch. 1) notes, take a
ance Corporation, Limited, 296 F.2d 569 (1961) U.S), more active role as a mediator, though only with
the Canadian province of Quebec (Magnet 1980), the consent of the two disputing parties. While
and Scotland. The common law system is often mediators may seek to preserve their neutrality, in
dated from the Norman conquest of England in fact he may, as in the case of real estate agents,
the eleventh century, when the Normans sought to make proposals of their own and may shade the
impose a single system on the country, hence the decision by how they handle the facts each shares
name ‘‘common law.’’ Common law is now found with them. Less consent from the disputants is
not only in Great Britain but in those countries involved when an arbitrator appears who may be
that made up the British Empire, such as Canada, persons agreed to by the parties or persons im-
Australia, New Zealand, Ireland, India, as well as posed by the state or the terms of a labor contract,
the United States, and is influential in many coun- for example. Arbitrators are under no obligation
tries of Africa and Asia. During colonialism, the of coming up with a solution agreeable to both,
common law countries preserved legal ties with but they will usually try for such a solution. The
England through Privy Council appeal, a process most coercive situation of all is the appearance of a
largely abolished or greatly attenuated today. Com- judge, either as required by law or by decision of a
parable appeals or ties to a single place were governmental body. Here the parties may have no
largely unknown to the civil law system. Whether say at all either in his appointment or on the body
the European Community will establish some form of rules he applies, which may be the terms of a
of tie remains to be seen. contract or the rules of law.

THE BASIC COURT PARADIGM: THE The dilemma in all these triadic situations is,
as noted, preventing the breakdown into two against
TRIADIC DILEMMA one. Whatever the outcome, those who lose are
likely to feel the other two have somehow com-
When persons with a grievance decide to take bined against them or that they were defeated
action, they may: (1) act separately from each from the start. In common law systems, the myth
other as in direct attacks, seizure of property, etc. of the neutral judge is much celebrated, although
(see Black 1993, chs. 2, 5); (2) confront the other since judges are political figures who owe their
party; or (3) enlist the participation of a third party position to their political activities and may even
to help settle the dispute. Courts are preeminently have been rewarded with the judgeship for their
concerned with this third option, what we call ‘‘the services, it is not surprising the loser feels he never
triadic dilemma.’’ Although courts deal with mat- had a chance. In Civil law systems, there is no
ters other than dispute settlement, such as law pretence of neutrality. The judge is a member of
making (when judges make a new policy in deci- the civil service and hence a part of government
sion making) as well, of course, as social control, itself. With the prosecutor in criminal cases being
they all employ a variant of a triad. Two persons or also a member of the administration, the dice are
collectivities who have been unable to settle their loaded as two against one. On the other hand, this
differences or who have accused others of public does not mean the civil law system is less fair or just.
harm have in all societies sought the help or
guidance of a third party. The hope of each party is Indeed, because of the many protections of-
that the third party will side with them. Although fered to the accused in common law systems, one
each may think it fairest if the third party is neu- author commented that if he were guilty, he would
tral, in practice each hopes for a decision in his or rather be tried in the United States but if innocent,

465

COURT SYSTEMS AND LAW

then he would prefer the Civil law system because, We proceed to a detailed examination of the
for reasons we shall explain, judges have far less two systems, beginning with the common law sys-
power than they do in the United States, and the tem as most familiar to American readers. But that
system is far less adversarial. The Civil law judge very familiarity is likely to blind us to the assump-
assumes a more neutral role in searching for tions of the system that contrast so sharply with the
‘‘truth,’’ rather than winners or losers. Attempts equally hidden assumptions of the civil law system.
are made in both systems to produce an outcome
that each will feel is ‘‘just.’’ Disputants may be THE COMMON LAW SYSTEM
asked to submit voluntarily, and if they do, they
will be felt to have offered at least a modicum of Although most persons are taken with the image
consent to the outcome. Alternatively, attempts of justice as a ‘‘blind lady’’ who acts on the basis of
are made to avoid an all-or-none outcome. For the facts and the inherent justice of the situation,
example, in auto accident cases, one party may be as Jacob (1996) points out, courts in common law
felt to be 70 percent at fault and the other 30 systems are ridden with policy assumptions, no
percent, with a division of property in that propor- more so in the United States than in other places.
tion. In criminal situations, as in the United States, While courts go about their business of settling
a plea bargain may enable the accused to walk disputes and ensuring orderly procedures, their
away with a much lesser penalty than he or she procedures send symbolic messages (see Nelken
might otherwise have suffered. 1997; Sarat and Kearns 1988). This is especially the
case for appellate courts where, in contrast to
Actually, although plea bargaining is thought European courts, judges are fond of wrapping up
of as peculiar to criminal proceeding, negotiation their decisions in opinions that are often more
is equally common in what are called ‘‘civil situa- widely cited and influential than the decision it-
tions’’ (involving actions between two or more self. While conservatives are usually at pains to
persons) where, as in criminal proceedings, an insist that judges confine themselves to being ‘‘strict
estimated 90 percent of cases are settled without constructionists,’’ their opinions resonate with what
trial. Such resort to negotiation places a special the legal scholar Dworkin (1977) calls ‘‘princi-
strain on the triadic model, particularly where the ples.’’ In the classic case of Riggs vs Palmer (115
judge may himself participate, at least to the point N.Y. 506, 22 N.E. 188, 190, 1889), a presumptive
of interviewing the accused in case of crime, or the heir on becoming alarmed at the possibility that
parties in civil law, to provide assurance, at least in his grandfather might change his will proceeded
his own mind, that the accused or the plaintiff is to eliminate that possibility by murdering him.
aware of what is happening and has voluntarily The grandson was properly tried, but defended his
entered into the ‘‘deal.’’ (Klein 1976). What one right to his inheritance. The court refused to
needs to understand is that the ubiquity of nego- award the inheritance to him, leading a dissenting
tiation in American law is an organizational mod- judge in the case to ask for the court’s reasoning
el. Lawyers, both defending and prosecuting, as for this decision. After all, wrote the dissenter, the
well as lawyers in other courtroom situations be- will was in order, was it not? There were the
come ‘‘repeat players’’ (Galanter 1974), who deal required witnesses, and there was no question that
routinely with one another as well as with judges, it was the intent of the testator that the young man
clerks, and others in the court. Gradually, their should receive the bulk of the estate. With barely a
work becomes routinized, with all focusing on reference to those issues, the majority awarded the
getting things moving and coming out with cases bulk of the estate to the deceased’s daughters,
settled. The goal of the system, then, becomes one who, under the will, were to receive only token
of efficiently moving cases through, with partici- amounts. In sum, the majority proceeded to re-
pants seeing themselves, however unwittingly, as write the will in direct contravention of the de-
agents of the system. As that takes place, the triad ceased’s clearly expressed wishes. Although the
can be seen as disappearing altogether and being majority hunted mightily for a source for their
replaced by a work group consisting of three or decision, turning variously to Aristotle, the Bible,
more players who have an interest in the outcome an ancient case from Bologna, the Napoleonic
of the game (see Eisenstein and Jacob 1977; Ja- Code, Roman law and, finally, to a rather desper-
cob 1983). ate assumption that no specific law was really

466

COURT SYSTEMS AND LAW

needed, anyhow. In the end they asserted that alternate route to persons who lack funds or who
there is a ‘‘fundamental maxim’’ found in all ‘‘civi- have been stymied by attempts to influence legisla-
lized countries,’’ namely: tion. Persons can convert a private grievance into a
public cause (Savat and Scheingold 1998) by, for
No one shall be permitted to profit by his own example, deciding that severe burns from hot
fraud, or to take advantage of his own wrong, coffee served at McDonald’s requires court action
or to found any claim upon his own iniquity, to impose punitive damages as a warning to all
or to acquire property by his own crime. (Riggs companies serving the public that consumer safety
vs. Palmer 1889) must be a part of the design even in private firms.
So too, persons suffering from lung cancer who
But the dissenter asked: What is the legal have been unable to get protective legislation against
source of this ‘‘maxim?’’ It could not be found in cigarette companies have turned to the courts, not
any case previously decided, nor in any statute simply for financial awards, but for vindication of
(such is no longer the case in most jurisdictions). what they feel are violations of their rights, as
Although he agreed that the principle had intui- citizens, to life. When added up, the damage awards
tive appeal and might be found in most religious in such suits as well as those even in routine
and moral systems, the law, at least Western secu- automobile accidents, violations of privacy, and
lar law, is not simply a set of religious or moral tort and contractual disputes have never been
principles. In the United States, the Constitution totaled but constitute a huge shift in resources
specifically erects a wall between church and state. comparable to that involved in taxation. Nor have
Since that case, the principle, once announced by we touched on the part that lawyers’ fees play in
the court, has been cited and is indeed now a part such cases.
of U. S. (and most other common law countries)
law. But we must not go too far and declare that Finally, unlike judges in civil law jurisdictions
common law is simply a set of principles. Rather, who are part of the civil service from the start
the law is informed by policy assumptions, often (judges in France, for example, even go to special
hidden, but influential nonetheless. Although civil schools), judges especially in the United States,
law is equally political, attempts are much stronger often come to their judgeships in mid-life, after
to hide the policy assumptions with an insistence serving in political positions, business or other
that only a legislature can make law. All judges are areas of life. Jacob points out that:
supposed to do is apply it with as little innovation
or interpretation as possible, let alone enunciating . . . between 1963 and 1992, between 58 and
‘‘principles.’’ The overall issue of how much poli- 73 percent of federal appeals judges had a
tics and governmental policy is reflected in judicial record of party activism before their appoint-
decision making clearly affects the triadic system’s ments; among federal district judges, between
functioning to produce or not produce a sense of 49 and 61 percent had such a background.
justice done and seen to be done. It is this feature (1996, p.19)
that has been seized upon by Marxists and propo-
nents of socialist law who see both common law Yet such a background should not lead to
and civil law as simply disguised systems whereby cynicism that judges are necessarily biased or pro-
bourgeois ideologies are foisted on a powerless big business or pro-party. Their background in
proletariat by capitalist exploiters, whether gov- ordinary society helps ensure a commitment to the
ernmental or private. Their answer to the triadic importance of the rule of law, of procedural fair-
dilemma is that there never can be neutral third ness, and of individual rights as a legitimate expec-
parties, with the result that the only reality is tation of ordinary citizens.
endless strife between parties with temporary truces
as victors seek to pick up the spoils. A special characteristic of common law court
is often the source of surprise and some envy on
In addition to taking policy positions, courts the part of those schooled in civil law systems.
in common law systems can have massive effects American courts are often perceived as a jumble,
on society by judicial review of legislative acts, a with multiple urban, country, and state systems, so
phenomenon severely limited in civil law systems that what is actionable in Montana may not be
as we shall note. Courts also provide a major actionable in Idaho and that if one is not happy
with treatments in a state court, one can, with

467

COURT SYSTEMS AND LAW

some issues, move to a federal court. Such ‘‘forum be the ultimate source of law, supplemented by
shopping’’ seems a travesty to those accustomed to legislation that is still felt to be a kind of supple-
single systems. Yet the United States has more a ment to the code. In a sense, the code is thought to
single system than have many European countries. settle the matter of certainty with little need for
In those countries, there are often two sets of lawyers to interpret it. (This is less true in Germany
courts—ordinary courts that try the vast majority where lawyers play a larger role.)
of civil cases, and a second set of administrative
courts for those who have quarrels with the gov- But in addition, especially in America, the
ernment or administration. In the United States model of the triad is felt to be basic. A court case
most regular courts can handle any case that comes consists of two adversaries who argue before a
before them (though there are many specializa- (one hopes, neutral and just) judge. The emphasis
tions), and ultimately, the U. S. Supreme Court sits is on the adversarial process itself, a situation that
at the top as the final arbiter of law (considering produces not necessarily ‘‘truth’’ but rather a vic-
constitutional questions especially important and tory for one side. Lawyers play the key role, a
above all). Nor, it should be added, are courts matter that often leaves the outcome to the skill of
entirely separate systems. They are dependent for the lawyers as much as to other features of the
salary and other resources on what Congress and case. The judge is felt, if not to be neutral, at least
legislatures will provide, and they do not appoint to be passive, waiting for lawyers to present objec-
their own numbers. The U. S. Supreme Court is tions or evidence as they wish. If a lawyer chooses
indeed supreme on law, but it is in no sense the not to present a piece of evidence or simply sloppi-
apex of a bureaucracy that can appoint and disci- ly forgets to do so, the judge cannot intervene to
pline members of lower courts. Further, it is basi- instruct the lawyer on what he has left out. In civil
cally passive, waiting for cases to be brought to it law systems, the judge, while a mere civil servant,
when there is a ‘‘case or controversy,’’ thus severe- has more power to direct the course of the trial,
ly limiting its ability to act autonomously as a assuming what is often spoken of as an ‘‘inquisitorial
conscience of the nation. Often citizens gnash style.’’ Given the major role that lawyers play in
their teeth as the U. S. Supreme Court refuses to common law systems, it is important to give atten-
hear a case or decides it on the narrow issue that tion to how that role is played out. Since data are
happens to have been presented to it. In that more complete, we shall use U.S. sources. Howev-
sense, the entire legal system is the property of the er, comparable rates of increase for most catego-
lawyers and what they choose to present to the ries are found in Canada and Great Britain (see
courts, a situation vastly different from what we Galanter 1992). This is not meant to deny the
find in civil law systems. differences, especially cultural variations, in those
countries (see Atiyah and Summers 1987).
The impact of lawyers in common law systems
is greater than in civil law and indeed in any other DOMINANCE OF LAWYERS IN COMMON
system known to the world. Two major factors LAW SYSTEMS
help account for lawyer dominance. One is the
dependence on case law. Although legislation and In spite of their widespread influence and
statutes are basic sources of law, the necessity for frequently very high income, lawyers in America
interpretation and application to particular cases are not a happy lot. They are not esteemed (a
places enormous power in the hands of courts. If Gallup Poll found that 46 percent of respondents
all legal systems require a strong sense of certainty, rated lawyers ‘‘low’’ or ‘‘very low’’ in honesty and
then that certainty is provided in common law ethical standards, just barely above used-car sales-
systems by the majestic procession of cases, wheth- men). A survey by the California Bar Association
er simply confirming one another, adding details, in 1992 reported that 70 percent of those polled
or overruling contradictory cases. To argue a case said they would choose another career if they
in an American court is to recite cases, and if there could. Even more—75 percent—confessed that
are enough of them, lawyers and judges feel the they would not want their children to become
outcome can be considered settled. On the other lawyers. Other studies report that lawyer job satis-
hand, civil law systems depend on codes as enacted faction is dropping, along with much higher levels
by revolutionary regimes, which codes are felt to

468

COURT SYSTEMS AND LAW

of alcoholism, drug abuse, and symptoms of de- other influential careers are launched, including
pression than those found in the general population. leading positions on major committees and boards,
as well as ambassadorships and presidencies. Twen-
In spite of such indices of self-destruction, the ty-five of the forty-one U. S. presidents have been
number of lawyers in the United States has been lawyers, as well as half of U. S. senators and nearly
rising, especially in the 1990s. From 374,000 in half of all members of Congress. Lawyers are
1975, the number of lawyers will soon top one widely found in governorships and state legisla-
million as 31,000+ new lawyers are admitted to the tures as well. If these are not the most esteemed
bar every year. The field is proving attractive to members of society, they certainly are among the
minorities and women. From a low of only about 3 most powerful and perhaps the most feared.
percent in 1971, female lawyers now make up over
one-quarter of the total of practicing lawyers, and Although most persons in common law sys-
nearly one-half of students in entering law school tems are aware of the presence of lawyers in those
classes. Female lawyers, as a group, are younger, settings, it is not the image most have when they
with only 7 percent being over 50 compared to 30 think of lawyers, and it is not the setting in which
percent of their male colleagues. they see them in television drama. Instead, it is the
lawyer, often solo or in a small firm, arguing for his
The location of practice has, however, not or her client in a courtroom before a jury. The
changed significantly. Private practice is domi- television image runs counter to the image of real
nant, even increasing, so that by 1991, 73 percent lawyers in the news, leading to charges that the
of lawyers were in private practice, with only 8.8 United States is a ‘‘litigious’’ society, in which large
percent found in private industry, and 8.2 percent awards are given for burns suffered from spills of
in government. But private practice has been un- hot coffee, and there are suits against arrest for
dergoing profound changes. Solo practitioners breast-feeding in public or for recovery of ex-
have become scarcer as lawyers move increasingly penses on being stood up for a date. Though most
to firms. The increase is mainly in larger firms such cases are thrown out immediately by disgust-
(those with at least eleven lawyers). In 1980, the ed judges or settled out of court for modest sums,
very large firms (one hundred or more lawyers) critics person who may never hear of those out-
accounted for only 7 percent of firm employment. comes continue to demand that we follow the lead
By 1991, that percent jumped to twenty-three. The of the nonlitigious Japanese, for example, who
large firms are the more common locus for men, make do with very few lawyers. Actually, the num-
with women being more likely to be found in ber of lawyers in Japan is deliberately kept low by
government, legal aid, and in public defender’s the governing elite to preserve a hierarchical social
offices. Some of these differences are declining as order. Nor are the Japanese devoid of a taste for
more women enter the profession and attain expe- litigation by any means (Haley 1978, 1991, ch. 5).
rience. On the other hand, more women, propor-
tionally, are leaving the profession. Nor has the United States had a ‘‘litigation
explosion’’ nearly as great as some have claimed.
It is the large firms that attract more and more There was only a moderate increase at the state
of the new lawyers who seek distinguished and level in the 1990s. It is true that there has been a
lucrative careers. The largest—often called ‘‘mega large increase in the number of federal cases, not
firms’’—range from the Washington, D. C., firm of the trivial sort noted above but rather of big
of Williams & Connolly with 127 lawyers (sixty-one businesses suing each other. The news of most of
partners) producing revenues of $78 million, to those ends up on the back pages of the Wall Street
true giants, such as the New York firm of Skadden, Journal. Other federal cases deal with asbestos and
Arps, Slate, Meagher & Flom, with over 1,000 similar injuries as well as other suits by govern-
lawyers (236 partners) earning well over half-a- ment (Galanter 1983; Galanter and Palay 1991).
billion dollars in gross revenue. Some firms are The reason it seems that the U.S. is experiencing a
even larger. They are not, of course, all under one litigation explosion is that there is an increasing
roof but scattered in different cities as well as in prominence of what have been called ‘‘mega’’
foreign countries. Not only are these the places cases, in which large masses of lawyers and experts
where the largest salaries are found, but they are pursue a single case, sometimes for years on end.
also the platforms from which government and Although most involve business, a few involve

469

COURT SYSTEMS AND LAW

highly prominent individuals who have the re- an insurance company, draw up wills, and deal
sources and will to fight, intimidate, and otherwise with persons who are in minor trouble with the
bring up issues, subsidiary issues, and more of law. On the other hand, work in a large law office is
what Damaska (1978, p. 240) has called ‘‘compan- carried out by specialists who do the complex work
ion litigation’’ where, along with the main case, of big business. Large businesses often make use
separate suits are filed on discovery, on legal fees, of their own ‘‘in-house counsel’’ for the routine
on standing, and on other issues, which lengthen work of contracts, labor-management negotiation,
proceedings and often do little more than harass and other repetitive legal activities. The company
the other side or both sides into exhaustion. Such turns to outside law firms for the unusual, once-
cases take the form of a ‘‘prolonged clinch and. . . only activity, such as mergers and acquisitions,
settlement’’ (Galanter 1983, p. 163) while rarely floating new securities, takeovers, and bankrupt-
ever ending up in court. Meanwhile, such cases cies. Such activities call for the highest degree of
contribute to the image of the United States as a expertise and knowledge, far beyond what a solo
‘‘litigious’’ society. lawyer might be called upon to have. A major study
of Chicago lawyers (Heinz and Laumann 1982)
Yet, even granting all such cases, very few asked them to rank legal specialties in prestige. At
lawyers are involved in doing such things. Only a the top were securities, tax, antitrust, patents,
small minority of all dealings of U. S. lawyers ever banking, and public utilities—the activities in which
result in a contested court action. Most legal prac- large law firms are involved. At the bottom were
tice takes place in offices for the benefit of busi- criminal defense and prosecution, personal injury,
ness firms, and only a small minority deal with consumer debt, landlord-tenant, divorce, and fami-
individual clients at all. Even in those cases, law- ly—the concerns of the solo and small-firm lawyer.
yers spend much of their time persuading suit- The income differentials between the two clusters
eager clients not to go to court but to work out a are equally impressive. A major study reported
settlement. Lawyers generally limit themselves to salaries from large firms in Indianapolis and New
cases they think they can win. Often filing a case is York to average around $300,000 per partner for
symbolic of seriousness of intent, forcing a re- the year, but many make much more. A New York
sponse from the other party; but the cases are law firm reported that each of its 121 lawyers
settled, sometimes on the very eve of the court (sixty-one equity partners) earned over $1 million.
date or even as the trial, if there is one, is in Many others were not far behind. Lawyers in solo
process. and small firms are not poor but make a good deal
less. A 1995 survey reported that those lawyers
What all this amounts to is that the legal earn somewhere between $75,000 and $100,000 a
profession in the United States is ‘‘split.’’ Most year, assuming they work a full two-thousand billable
lawyers quietly carry on the journeymen work of hours, which some do not. Associates (that is,
settling disputes and assisting persons to compro- nonpartners) start out, according to a 1996 study,
mise so that they can carry on with their lives. A from lows of $40,000 to as high as $70,000, but
very, very few carry out the courtroom battles of then rise with each year in the larger firms to
the O. J. Simpson type that dominate the front $150,000 and up, plus bonuses. Stories of such
pages of the nation’s newspapers. In such cases, incomes add little to offset the low esteem in which
lawyers are not seen as settling disputes but they lawyers are held, especially since most persons
are seen by many people as ‘‘getting people off,’’ who deal with lawyers find the lawyer wants money
leading to cynicism or to despising lawyers, even ‘‘up front’’ or on a retainer basis, unless a contin-
when or even because they win. Many cases take gency arrangement is made, and often even then.
place outside the large law firm, but the reputation (Note: The preceding section draws from the au-
of lawyers created by the sensational cases affects thor’s paper, Gross 1998.)
the public image of all lawyers, wherever located.
TOO MANY LAWYERS?
One special feature of the split deserves atten-
tion; namely, income. Solo and small-firm lawyers A final issue that troubles many observers
carry out much of the work of helping persons set both in common law and civil law countries is
up partnerships, get a divorce or settlement from

470

COURT SYSTEMS AND LAW

Judges, Lawyers, and Civil Litigation in Selected Countries

Judges Lawyers Civil Cases

Country Date Number Date Number Date Number
per per per
Australia Million Million Million
Belgium
Canada 1977 41.6 1975 911.6 1975 62.06
Denmark 1975 105.7 1972 389.7 1969 28.31
England/Wales 1970 1972 890.1 1981-2 46.58
France 59.3 1970 41.04
Italy 1973
Japan 1973 50.9 1973 606.4 1975 41.1
Netherlands 1973 84.0 1973 206.4 1973 30.67
New Zealand 1973 100.8 1973 792.6 1978
Norway 1974 22.7 1973 1970 9.66
Spain 1975 39.8 1972 91.2 1978 11.68
Sweden 1976 26.8 1975 170.8 1976
United States 1977 60.8 1977 1081.3 1970 8.25
W. Germany 1970 31.0 1972 450.0 1973 53.32
1973 99.6 1973 893.4 1975 20.32
Table 1 1980 94.9 1980 192.4 1977
1973 213.4 1973 2348.7 3.45
417.2 35.0
44.0
23.35

whether the United States, in particular, is ‘‘over- Sweden. But when we come to lawyers, the United
lawyered.’’ Some even see this question as helping States far exceeds other countries, though Austral-
account for the so-called litigiousness of American ia, New Zealand, Canada, and Spain are also richly
law. Whatever the numbers, an increasing number supplied. As we note later in the discussion of civil
of civil cases are settled either during or after trial. law countries, many others not called ‘‘lawyers’’ do
Lawyers play their role in filing cases, but most of what the United States would call ‘‘law.’’ Such
their work is done outside the court, which, of persons include notaries, government officials of
course, means lots of work for lawyers. Further, many kinds, law clerks in private firms, and, in
although cases may never reach court, as Mnookin Japan, the very high proportion of those who take
and Kornhauser (1979) put it, much negotiation the exam but are not allowed to practice (they do
takes place in the ‘‘shadow of law.’’ That is, law- just about everything lawyers in the United States
yers, well or poorly acquainted with actual court do except represent clients in court).
cases, call attention to what is ‘‘likely’’ to happen if
they go to court, not to speak of the delay and In making such international or intercultural
expense. So law, or at least imagined law, plays a comparisons, one should bear in mind differences
dominant role even when never specifically called in conceptions of what is worth disputing over and
into play (Ewick and Silbey 1998). indeed what a dispute is in the first place. The
studies by Felstiner, Abel, and Sarat (1980–81)
A useful table (table 1), if read with caution, is suggest that a great many, perhaps most, injurious
provided after careful research by Galanter experiences are never perceived as such, but rath-
(1983, p. 53). er thought of as simply part of the risks of living.
Some proportion of these are seen as violations of
Although we do not provide the sources, the some right, but even many of those are simply
results differ in dependability and the care with ‘‘lumped,’’ that is, borne with equanimity or toler-
which they have been calculated. Still, the con- ated as not worth pursuing because of time or
trasts, however crude, are revealing. As to civil costs. A small proportion are, however, charged to
cases, the United States is seen to stand toward the a specific causal agent, and if a person or collectivi-
middle, exceeded by Australia, New Zealand, and ty, then become what are called ‘‘grievances.’’
Canada, with many others being much lower. The Some small proportion of those in turn, if voiced,
United States is at the lower end in judges, being turn into claims that, if rejected, become ‘‘dis-
exceeded by W. Germany, Belgium, Italy, and putes.’’ In turn, most (90 percent approximately)

471

COURT SYSTEMS AND LAW

disputes brought to lawyers are settled with vary- routinely discussed in the ‘‘legal’’ columns of popu-
ing degrees of satisfaction, lawyers often function- lar magazines. It is not clear that the reasons affect
ing to persuade the aggrieved that they should policy in any obvious way. But the language of the
accept a settlement and move along with their court enters common discourse and affects think-
lives. Whether persons are willing to pursue a ing. School boards, church councils, Boy Scout
grievance depends on technology and the ability boards, and even teachers’ decisions on classroom
to find a causal agent, as well as the existence of discipline become legalistic, with persons being
such legal devices as no-fault automobile insur- given notice of charges, given chances to answer,
ance or divorce, which have the effect of diverting and allowed to bring witnesses in their defense. In
cases out of the legal system (see Kritzer, Bogart, the United States, as in common law countries, the
and Vidmar 1991). Some countries, such as many law seems to be everywhere (Galanter 1983), even
on the European continent, have special labor if not formally invoked.
tribunals and other systems that also divert cases
out of what would, in the United States, be a legal THE CIVIL LAW TRADITION
case. The United States has fewer such alternative
forums than is the case in the civil law world. In drawing comparisons between the common law
and civil law traditions, it is important not to
Jacob (1996, p. 52) speculates that the United dismiss variations as due simply to ‘‘historical ex-
States is, perhaps, more a nation of strangers, perience’’ or to even vaguer influence of ‘‘cul-
leading to a greater willingness to pursue disputes ture.’’ History and culture are, of course, operative
than is the case in countries with a stronger sense at all times, but we seek not simply a description
of community. In general, it may be said that the but a sociological explanation. We must begin with
closer persons are, whether as family, neighbors or the recognition of what Zweigert and Kotz (1987)
co-religionists, the less likely are they to sue one call ‘‘functionalism.’’ By that they mean that all
another. On the other hand, that does not mean legal systems deal with generally similar problems
there are fewer conflicts in such groups. Rather, as, say, medical systems do. Whether the society
there are internal mechanisms for settling them employs witchcraft, herbs, appeals to the gods,
within such groups. leeches, hot baths, or Western-style x-rays and
surgery, they all deal with illnesses of the body. So,
A final point about common law systems that too, legal systems concern themselves with trouble
contrasts with civil law systems is the widespread presented by the fact that humans live in society
availability of appeal, particularly within the judi- and must deal with each other. In Chiangmai,
cial systems. Although much of this is perfunctory Thailand, for example, it is not surprising to find
and may involve little more than an attempt to that three main classes of law suits appear: crimes
satisfy clients with the appeals court routinely as offenses against public order or the state, which
affirming the lower court, still appeal is possible, are dealt with seriously by the courts; private wrongs,
much more so than in civil law countries. Appel- such as those arising from marital disputes, which
late judges often lack experience and are not are settled by negotiation; and those conflicts
required to have experience as trial judges. In involving contracts and property rights, which are
some cases, judges have discretion on whether to settled by careful examination of written and espe-
hear an appeal, leading to selection of cases that cially certified documents (Engel 1978). The de-
may be controversial or present novel points of tails are indeed ‘‘cultural,’’ involving what Watson
law. The extreme is presented by the U. S. Su- (1977) speaks of as ‘‘legal transplants,’’ by which a
preme Court which, in the 1990s, has elected to society adopts some procedure borrowed from
consider around 100 out of some 5,000 cases another society because it is accessible, written in a
presented to it, usually reserving to hear constitu- language the elite can read (such as Latin for
tional cases and conflicts between the states or Roman law), or more commonly simply the law of
foreign governments. It is difficult to assess the a conquering power as with England or India. One
impact of appeals on the civil or criminal process. wastes one’s time if one looks for rational reasons
Unlike trial judges, appeals judges do not merely or tries to account for such transplants on grounds
decide cases but also give reasons. Such reasons of ‘‘efficiency,’’ although often people come to
are often examined by elite lawyers and are now

472

COURT SYSTEMS AND LAW

believe in the superior efficiency of the system of but has had a strong effect on civil law (narrowly
law they happen to use. conceived) in common law countries as well. Basic
principles the Roman jurists developed echo
On the other hand, a close examination of through the ages up to the present.
legal procedures can have much to teach about the
assumptions taken for granted in the culture (Ross With the invasions of Rome that followed,
1993; Nelken 1997). In a report on a personal much of this law fell into disuse or was united with
experience in Indonesia, Lev (1972) tells of an the local laws of German tribes. However, canon
accident in a hotel in which a toilet tank, affixed law, as developed by the Catholic Church for its
high up on a wall, fell, nearly hitting a friend. To own uses, came to be widely adopted and grafted
Lev’s amazement, the hotel presented him and his onto classic Roman law, influencing family law and
friend with a bill for repairs. Lev refused, turning civil procedure as well as much else, though not
for help to a local judge, who was also a friend, for public law for the most part. Then, with the Ren-
support for what Lev felt were his legal rights. The aissance, classic Justinian law was revived, especial-
judge, while agreeing that those were indeed his ly in Bologna, where scholars gathered from all
legal rights, proposed that Lev make a token pay- over Europe to study it, in Latin of course, and
ment as evidence of ‘‘good will.’’ With reluctance, then spread it, where it came to be known as the jus
Lev did so since compromise or peace was, the commune. However, as it spread, it was inevitably
judge reminded him, after all, more important influenced by local laws and customs that were
than vindication of rights. An even more obvious often simply added to it in the interests of utility
example is presented in a Mexican case in which for solutions of local problems. A third develop-
the supreme court absolved a court for liability for ment was commercial law, also from Italy, at about
the theft of money and jewels left in the care of the the time of Crusades, when there was much trans-
court pending settlement of the case. After all, said port of goods and persons. The guilds and towns
the court, Mexico is a poor country that cannot that developed this law were, for the most part,
afford safe deposit boxes or secure storage places, only tangentially influenced by Roman law since
but they do the best they can. The court then the focus was on rules merchants developed for
quotes what it clearly sees as a universal ‘‘principle their own use. Such rules spread even more widely
of law,’’ ‘‘impossibilium nulla obligatio est,’’ which than the jus commune up to the present day, where
the court translates simply as ‘‘No one is obligated much of it can be found in admiralty law and
to do the impossible’’ (quoted in Merryman, Clark, related fields. It is quite clear, for example, that
and Haley 1994, p. 684). These considerations are when two ships approach one another on the high
spoken of by Glendon (1987) as the ‘‘hortatory’’ seas there had better be a clear understanding as
function of law in civil law systems. She contrasts whether they both keep to the right or to the left,
that with a view that American and British law and that understanding must be clear whatever
usually involve a command backed up by punish- the differences in language, culture, or tradition.
ment. Yet, whatever the system, laws, whether self- It is the nearest thing law offers to a truly interna-
consciously doing so (as in civil law systems) or tional and intercultural system.
inadvertently (as in common law systems), always
teach lessons as persons observe their operations. But there is more to modern civil law than a
revival and Renaissance enrichment. The system
Understanding of the civil law systems re- was almost totally transformed by the ideas that
quires recognition that they come to us in two gave birth to the political revolutions that began in
widely separated parts. The first is what is owed the seventeenth century and are far from over at
(and that is a great deal) to Roman law as codified the present day. The revolutions were, of course,
in the sixth century under the Emperor Justinian the American and French Revolutions, the mili-
as the Corpus Juris Civilis. This magnificent collec- tary and ideological events associated with the
tion includes the law of persons, family, inherit- unification of Italy and Germany, the coming new
ance, property, contracts, and remedies, all of nations as the Turkish Empire disintegrated, the
which the juriconsults (the legal experts) of the day movements for freedom from Spanish and Portu-
saw as forming a unified body of law and which has guese domination in the Americas, as well as the
been largely seen that way ever since. The influ- chaos that followed the great wars of the nine-
ence was not simply on the Civil law system as such teenth and twentieth centuries. While the word

473

COURT SYSTEMS AND LAW

‘‘chaos’’ may be useful in a strictly descriptive support of the landed classes and the aristocracy.
sense, it is better to speak of these changes in the As Stone (1986) points out, the French parlements
term employed by Schumpeter (1976) as winds of (panels of judges) had almost limitless power—
‘‘creative destruction,’’ for they did not simply they could arrest seditious persons, ban public
destroy but created what we speak of as the mod- gatherings, evaluate regulations of all kinds, super-
ern world. What they destroyed was basically feu- vise guilds and universities, and act as censors of
dalism and the concept of status fixed at birth as public morals. Somewhat similar powers were en-
well as the conception of a divinely ordained, and joyed by the audiencia as representatives of royal
hence unchangeable, social universe. In Weber’s power by the Spanish conquerors of Latin Ameri-
classic phrase, we witnessed a ‘‘disenchantment of ca. Such power led to their becoming wealthy and
the world’’ which left humans, in the words of the powerful, which led, in the case of France, ironical-
existentialists, fated to create their own world and ly, to their own undoing. Although their vast pow-
take responsibility for it. This meant that law was ers might (and did occasionally) act as a break on
secular, torn loose from any religious basis, but royal powers, instead in a final act of defiance of
focused instead on what came to be called ‘‘posi- the royal power, they threatened to resign on the
tive law,’’ that is law enacted by legislatures and very eve of the French Revolution. The Constitu-
parliaments. The transformation was not merely ent Assembly voted to place them on indefinite
procedural but involved substantive changes in vacation and then abolished them altogether. In a
the assumptions of legal rights. These were the sense, their very arrogance and posturing led to a
now-familiar rights stated in the American and recognition that they would be a permanent obsta-
French revolutionary documents—rights to liber- cle to the new freedoms the revolutionaries wished
ty and property, the opportunity to change one’s to establish. A result was that there was a serious
status through one’s own efforts, the right to own attempt to reduce the judge forever to a mechani-
land in one’s own person rather than merely, as in cal figure who would simply carry out the ex-
feudalism, as a serf or dependant of a feudal lord. pressed will of the parliament in the name of the
Along with these changes came fundamental people. As such, the judge would have no inherent
changes in loyalty and allegiance. Instead of fealty powers at all but would become a clerk or servant.
and subordination to lord or guild master, alle- He was not to presume even to interpret the will of
giance came to be narrowed to a single, overarching the parliament. But how was that to be achieved?
focus on the nation-state. The power of the church
was similarly destroyed or greatly attenuated, as in The answer was to create a code that could
England, and with that decline went the jurisdic- answer all legal questions for the judge. In terms of
tion of ecclesiastical courts as well, though some of the triadic model, two adversaries would argue
the traditions of canon law as, for example, in civil before a neutral third who would simply delve into
procedure (where courts make use of written rec- the code, find the answer, and impose the solution
ords of proceedings and much less, than in com- on them. In practice, as we can see from our
mon law systems, of oral testimony in trials), were vantage point, matters could never be so simple.
retained. As time went on, the concept of a legislative or
code monopoly of law gave way to systems where-
Although the state and the law created by by the judge could declare legislative or adminis-
legislators came to make up the substance of law, it trative acts unconstitutional, but the process in-
should be noted that in time it became evident that volved much hedging by being careful, at first, at
some controls were necessary on the state itself. In least to locate the places in which such review
the United States, this control is institutionalized could take place outside the ordinary court sys-
in the doctrine of the separation of powers, espe- tems in special constitutional courts (often not
cially the ability of the courts to rule on the consti- even called courts) as in France, Germany, Italy,
tutionality of legislative enactments as well as the and Spain, and in most Latin American countries,
authority and legality of administrative acts and though in the latter, more influenced by U. S.
regulations. The civil law countries also elaborated practice, they were less reluctant to call them
a separation of powers but a very different one. courts. There was little of this problem in England,
The concern there was the enormous power judg- which changed more slowly, retained more feudal
es had during the feudal period to act, usually in practices, and, most important, did not go through a

474

COURT SYSTEMS AND LAW

bloody revolution to achieve the doctrine of parlia- Germany, under Bismarck, did enact a code in
mentary superiority (though the British did cut off the full sense but in what can only be seen as a very
at least one head and became, for a time, a republic). Germanic manner. The Code Napolèon began with
certain assumptions about human nature (equali-
Although one often speaks of common law ty, liberty, etc.) and tried to produce a humanistic
systems as made up of cumulative, judge-dominat- code that would, presumably, have universal appli-
ed case systems, and Civil law countries as code cation. Under the influence of Savigny, a major
systems, Merryman (1985, ch. v) reminds us that German historian, that approach was felt to be
the contrast is overdrawn and misleading. All Ameri- inappropriate. Instead, he insisted (in the face of
can law students are forced to master the Uniform heated controversy) that the German code (and he
Commercial Code, and many states routinely refer did agree that a code was necessary), since it was
to their laws as ‘‘codes.’’ So too, there are code intended to represent the spirit of German socie-
nations, such as Hungary, that actually did not ty, must be based on the German volkgeist (folk
enact a code until it became a socialist state, al- spirit). But it was first necessary to decide what that
though it was a Civil law country before then. was. To that end, and with help of German roman-
Instead, what is distinctive of codes in civil law tic writers, he felt it necessary to plumb German
systems is that they are unified documents that history for the basic elements of the volkgeist and
seek to express the spirit, ideology, and goals of build the code up from those elements. That code
the new state the revolution has created. Thus, the would then be not only historically oriented but
French code, the Code Napolèon of 1984, sought to also scientific (in being built up by logical and
express the ideology of the French Revolution— empirical deduction from basic principles) and
liberty, equality, and fraternity—in every clause. It professional. This code would not be revolutionar-
was intended to be a blueprint for a utopia. Thus, y—quite the contrary—but would be a true code in
every attempt was made to abolish or at least hide being built up, paragraph by paragraph, from
any earlier statutes or laws that were inconsistent principles that could stand on their own as a legal
with it and try to make a fresh start. Law would document and manifesto of the new Germany.
now begin with the Code Napolèon. One difference from the French code was that
with its complexity and its dependence on the
Further, in lines with the French Declaration many historical details that went into the volkgeist,
Rights of Man and of the Citizen, the Code Napolèon it would require lawyers to explain and interpret it.
must be one that the average Frenchman could Nevertheless, it was careful, like the French, to
read and interpret for himself without ‘‘humiliat- make sure judges would have little power, perhaps
ing’’ himself by going through clerks, officials, and even less than was the case in France. For answers,
other overlords to get to the courts. As such, the German litigant, with the help of his lawyers,
lawyers would be unnecessary. For this to be possi- was to go to the code and, above all, not to seek
ble, the code must be complete—without gaps. answers as American and common law lawyers do.
Everything would be covered. Although manifest- That would just return power to the judges again.
ly impossible, the Germans did make a valiant
attempt to do so in the Prussian Landrecht of 1794, Codes were also enacted in the many coun-
which laid out some 17,000 detailed ‘‘fact situa- tries in Europe and elsewhere that followed the
tions’’ that were felt to cover everything that could French or German systems (Japan tried doing
come up, thus eliminating any need for lawyers or both, with a dollop of the U. S. model thrown in as
interpreters. It failed, but it is a striking illustration well (Haley 1991), though the German model
of how persuasive was the ideology of the French eventually triumphed). When a code was shown to
Revolution, which created the belief that it could have gaps, scholars (in keeping with the tradition
be done. In the Code Napolèon and others following of drawing on the juriconsults in Roman law)
it, the goal of completeness is achieved but only by would develop a new principle, as in an example
broad statements that practically invite judicial provided by Watson (1981), wherein a doctrine
interpretation. (For example, the Italian Civil Code similar to the British concept of estoppel was devel-
of 1942 tells judges to follow the intention of the oped to cover cases where a person had acted
legislature, and if it is not entirely clear, then to contrary to his usual practice but others had come
reason by ‘‘analogy.’’) to rely on this new behavior. But when a new

475

COURT SYSTEMS AND LAW

interpretation (rather than a gap) was the prob- It is clear from the above that the Uniform
lem, the court would draw on similar cases, not as Commercial Code in the United States, though
precedents but to use as a basis for a new principle called a code, has nothing in common with the civil
that would be held to govern the case at hand. In law codes. It is not animated by any underlying
this manner, the spirit of a code based on perma- utopian principles, it makes no claim to answer all
nent principles would be maintained. questions, and it makes no attempt to supersede
any laws. Instead, it is a collection that seeks to
The German approach to codification had a bring some order into the many elements of com-
lasting effect in emphasizing the dominant role of mercial law. States are free to ignore it (though few
the scholar in civil law systems generally. Although do so), and new laws can be tacked onto it at any
the scholars were everywhere evident, in the case time. It remains judge-made law, with judges being
of Germany, Savigny and his followers felt that in free to draw on it or not for precedent as they please.
creating what they considered to be a code based
on ‘‘scientific’’ principles they were creating a Legal science did leave one imprint on Ameri-
body of law that was indeed scientific in a sense not can law, though a minor one. Case law, as taught in
unlike that of the physical sciences. It was built up American law schools, was thought of as a kind of
from empirical elements, could be found to be science, with cases as the raw materials. Conclu-
true or false, subject, as any science is, to modifica- sions from case accumulations might generate
tion as new facts came in. It came to be called principles with wide applications. An attempt to
‘‘legal science,’’ which remains the dominant school state these principles took the form of what were
of thought even up to the present, however much called restatements, which are, from time to time,
criticized. It had its own concepts, such as a ‘‘juridi- quoted by judges as they go about making law.
cal act,’’ and was systematic in structure and there-
fore an infinite distance from such American JUDGES
schools of thought as ‘‘legal realism.’’ Above all,
the Pandectists (as they came to be known, from As we have noted, the position of judges in civil law
the Latin word for Justinian’s Digest—pandectae) countries is vastly different from that in common
felt their great strength was their purity in being law countries, especially the United States. Merryman
divorced from politics and everyday life. (1985) points out that judges are not only respect-
ed in the United States but that some, such as
Actually, as Merryman (1985, pp. 65) points Marshall, Holmes, Brandeis, and Cardozo, are
out, the Pandectists were far from being value free. culture heroes. The opinions of U. S. Supreme
The doctrine was shot through and through with Court judges are studied carefully, as noted earli-
the basic assumptions of nineteenth-century Euro- er, for hints of policy changes and guidance on
pean liberalism—private property, liberty of con- how to proceed in deciding on difficult issues such
tract and, above all, individualism. They were most as euthanasia, product safety, and whether schools
limited in their concept of law as a matter of may require bilingualism of its teachers. There
transactions between private individuals, an as- seems no limit to areas into which judges may
sumption that was to collapse in the growth of wander. Nor do judges hesitate in passing judg-
giant collectivities, such as corporations and labor ment on any law (if appropriate, of course) or even
federations and, most important, the increased on the private life of the President of the United
role of the state in managing economic and social States. As has often been noted, American law is
life. Although civil law systems recognize the dis- judge-made law built up from cases that lawyers
tinction between private and public law, even di- have presented for decision (and, note, the judge
viding up law in just that way, they hardly anticipat- must limit himself to such presentations, since he
ed, nor could they, the merging of the two systems is very limited in his power to bring up issues on his
as states began to manage private life, and as own initiative). The supreme doctrine is that of
private relations became imbued with public con- stare decisis, whereby judges are required to follow
sequences as with pollution, the spilling over of decided cases; new cases must be compared to
populations across borders and, still later, the those already decided. If similar facts, then a simi-
emergence of new national groups or even nations lar decision. If the facts are significantly different,
and new communities such as the European Com- then there is a different decision. As noted by
munity (cf. Gessner, Hoeland, and Varga 1996).

476

COURT SYSTEMS AND LAW

Clark (Merryman 1991, p. 898), this need to do lacking in validity because of vagueness or for
such case research, which falls on the shoulders of being over-broad. Instead, another body outside
lawyers, helps explain (though only partly) the fact the court system was created. These might be what
that the United States has more lawyers per capita would amount to administrative courts, with a
than any other country for which we have reliable council of state at the top, a process seen not only
statistics. in France but also in Italy and Belgium, as well as in
Germany and Austria, where they were actually
Nothing could be further from that image called administrative courts. Such attempts to coun-
among civil law judges. To begin with, the status of ter state power were not necessary in a country
‘‘judge’’ is usually much lower than is the case for such as England, where courts have the power of
common law judges. A civil law judge is a govern- quo warranto (questioning the legality of an act by a
ment employee, a civil servant, appointed to his public official) and mandamus (the ability to order
position, whose career will follow that of other civil a public official to perform as required by law). As
servants in rising by seniority and merit. His pres- noted, similar powers are possessed by ordinary
tige is not necessarily low but reflects the prestige American courts, though it is difficult for courts to
of civil servants at his level. He likely identifies with use them.
other civil servants, though more closely with judg-
es, resulting in a certain insularity from the gener- The attempts to control the power and initia-
al public and its concerns. He is particularly isolat- tive of judges was tied up with another concern of
ed from any creative role in decision making. In civil law traditions; namely, the search for certain-
line with the continuing suspicion of the dangers ty. As long as judges had interpretive powers, the
of judicial power going back to the parlements of law was a tool in their hands that could be twisted
pre-Revolutionary France (as well as similar excess- to suit particular interests. Instead, the hope was
es in other countries), he must not interpret the that if the code plus legislation was clear and
law or review legislation. As noted, he is a kind of complete the judge would not need to exercise any
expert in the application of the law to particular initiative. Such a concern with certainty is not
cases. More recently, constitutional review has foreign to common law, either—persons need to
begun to make its appearance in Austria, Spain, know what the law says for law to be a guide to
Italy, and Germany, but this goal is achieved not behavior. However, in civil law there is little that
through giving judges in the ordinary courts new resembles the concept of equity at law. Equity—the
powers but rather through the creation of special power of a judge to limit the harshness of a law or
constitutional review bodies that often are not to adapt the law to fit particular situations—gives
called ‘‘courts’’ but that in time perform court him great powers. In England, equity reached its
functions. greatest development in the creation of chancery
courts as a way of appealing to the king against
This is not to say that appeal from judicial what was felt to be an unjust rule of law. Civil law
decisions was or is impossible. Quite the contrary, countries, though occasionally, and grudgingly,
appeal is common but still dominated by attempts, conceding a place for equity, preferred to confine
at least in form, to restrict the power of judges. it to the legislature, which might grant equitable
Thus, in France, appeal for what is claimed to be a powers to a court for a particular case or might
misinterpretation of a law may be made to the make what amounts to an equitable grant of power
Court (originally called a tribunal) of Cassation to a court by telling it that, when the law is unclear,
which could quash an incorrect interpretation by a the court is to see to it that the parties acted ‘‘in
lower court. It would indicate the correct interpre- good faith.’’ But the suspicion of judicial discre-
tation but then remand it to the lower court to tion remains and is not always a simple prejudice.
modify its ruling. The courts could ignore this Thus, the Nazi regime in Germany was able to
decision but in practice would rarely do so. The make use of such discretion by using the courts to
process was time-consuming, and, in the case of provide a patina of legality to its racist decrees, a
Germany, the higher court would not only quash process more difficult in Mussolini’s Italy, where
the lower decision but go ahead and revise the discretion was more restricted.
decision itself. It was also possible to appeal ad-
ministrative rulings, though not, as in the Ameri- One other important difference is that the
can case, by declaring a law unconstitutional or English and American courts include in equitable

477

COURT SYSTEMS AND LAW

powers that of contempt. A litigant or witness who under a barrister in one of the Inns of Court where
refuses to follow court processes or who refuses to he may, under good conditions, receive an appren-
carry out the will of the court may be subject to the ticeship and possible appointment after passing an
contempt power, which can include fines and examination. Only barristers may argue cases in
imprisonment. This degree of power is quite un- the higher courts. Solicitors maintain direct con-
known in civil law countries where it is felt to give tact with clients, collect fees, and assist barristers in
the judge what amounts to discretion to impose their work. Solicitors are now being allowed to
criminal penalties in civil cases. The civil law judge argue cases in some lower courts. Some barristers
must, in comparable cases, limit himself to draw- may develop honored reputations, a few being
ing on the person’s property which may, of course, chosen as judges as the culmination of a distin-
be felt by the person, as no less painful than a guished career. There is almost no shifting to
period in prison might be for others. other careers on the part of barristers and very
little among solicitors. In that respect, they resem-
THE LEGAL PROFESSIONS ble the lawyers in civil law countries.

In the United States, lawyers, as well as the general In civil law countries, a young lawyer must
public, think of the legal profession in the singular, make an early choice as to whether he wishes to be
though specialties are recognized. This is especial- a judge, a government lawyer, a regular lawyer in
ly the case, as noted earlier, since such a high private practice, a public prosecutor, or a notary. If
proportion are in private practice (well over 70 he finds later he made a mistake, exit to another
percent) as compared, for example, to only 33 legal career is difficult, and does his experience in
percent in Germany, 42 percent in Colombia and one does not translate into credits in another. He
only 23 percent in Chile. The United States also spends his whole career in the one field, a process
has a very low proportion of the profession acting that often leads to rivalry and conflict between the
as judges (only 3 percent) compared to 17 percent fields. An attempt to deal with this problem is
in Germany, 23 percent in Chile, and 42 percent in made in Germany (and some other countries) in
Colombia. (Clark 1982, figures are for the 1960s the referendarzeit, where a lawyer spends two or so
and 1970s). In Germany, 70 percent of positions in years of practical training as a government lawyer,
general administration are filled by persons a judge, and in private practice. If lawyers choose
trained in law. to be judgse, they will begin their career in a low-
level court but may move up as openings occur.
Apart from differences in distribution, the Although this career process isolates the judges
path to a legal career is very dissimilar in different who take on guild-like characteristics as civil ser-
cultures. In the United States, aspiring lawyers go vants, it also means that judges are often better
to a graduate law school, then sit for the bar exam trained than is frequently the case in the United
(often after an intensive cram course that prepares States (where it is not uncommon for judges to
them for that exam), then after passing the bar (in have had no judicial experience whatsoever). Fur-
most states, the success-rate percentage is over 60 ther, the quality of judging may be higher since
percent, and higher for first-time exam takers) he candidates are chosen from among the best law
or she enters directly into practice in a firm, in a school graduates. At the top in constitutional courts,
small-firm partnership, or as a solo. There they for example, the quality of decision making is the
learn as they go along. Persons may, and many do, equal of that found anywhere.
shift around from service in a government depart-
ment to a public prosecutor office to the corporate Public prosecutor in Civil law countries are
law office of a private firm, or elsewhere. They may much like U. S. district attorneys, but they also are
run for political office and may end up being required to represent the public interest in pro-
rewarded for service by appointment or election ceedings between private persons in court situa-
as judge of a lower-level court and, for a few, high tions. In Italy and France, the prosecutor is also a
judicial office in a circuit or even a supreme court. member of the judiciary, allowing some shifting
back and forth from prosecutor to judge. Some
In England, the distinction between solicitor degree of shifting back and forth also takes place
and barrister, though less rigid than in the past, in Germany. Those lawyers working for the gov-
continues. The would-be barrister takes his pupilage ernment in administrative positions are career

478

COURT SYSTEMS AND LAW

bureaucrats. Closest to the U. S. lawyer in private who receives briefs from the counsel and listens to
practice is the French avocat (distinctions such as arguments. All of this takes the form of a series of
those between the avoues, who acted as solicitors in meetings as each issue is brought to the attention
appeals courts, and the conseil juridiques, who give of the hearing judge. There is little surprise as each
general advice and represent clients before com- lawyer is notified of each issue as it comes up, and,
mercial courts, are gradually being eliminated or without a jury, there is no cross-examination. Gen-
reduced in significance), the German anwalt or erally, questions are passed to the judge who may
Italian avvocato (Merryman et al., p. 918). Much conduct the investigation. There are fewer of the
different from that known in the United States is rules of evidence familiar to American lawyers
the notary who receives legal training and is an (such as the exclusionary rule whereby illegally
important person. He drafts important legal in- gathered information is excluded from trial),
struments, such as corporate charters, wills, and though a number of rules are employed, such as
instruments transferring land, as well as contracts. excluding biased persons from testifying, as well as
Most important, he authenticates documents. Once taking what is called a ‘‘decisory oath’’ in some
he does so, the instrument is accepted in court countries. There is in many countries a ‘‘loser
without further question. They also have monopo- pays’’ rule, referring mostly to legal fees, though
listic control over assigned territories. In Germany the amounts are usually limited by a court sched-
the services of a notary are required to validate ule. Contingent fees are usually considered illegal
legal documents for purchase, sale, and mortgage (France) or unethical (Germany) but are found in
of land, for official records of decisions of compa- Japan, Indonesia, and Thailand (Merryman et al.,
ny meetings, and for sale of shares in a private p. 1026). Many foreign legal authorities are ap-
company (Merryman et al., p 911). Academic law- palled by its prevalence in the United States, feel-
yers are found in a law school where they carry on ing that a lawyer should not be personally given a
the tradition of the old Roman juriconsult. Howev- stake in the outcome of a case.
er, most academic lawyers work for a professor
with little or no pay, and wait for a vacancy that Although substantive criminal law is similar in
may never come. In Latin American countries, both systems, civil law jurisdictions, in line with the
such persons may hardly earn a living, having to revolutionary principle of limiting the power of
take on regular work as a lawyer in private practice judges, reject the American practice, which gives
or in public office. the judge power to award penal and general dam-
ages in criminal cases, not to speak of the con-
CIVIL AND CRIMINAL PROCEDURE tempt power (which is very rare), instead insisting
the judge be limited to what is provided for in
Something should be said, in brief, about varia- legislation. The contrast is often drawn (or over-
tions in procedure between the two systems. Here, drawn) between what is called the ‘‘accusatory’’
the word ‘‘civil’’ is used in contrast to criminal. model in the United States and the ‘‘inquisitorial’’
There is no trial or jury in civil cases, as may often model in civil law countries. Historically, the accu-
be the case in the United States, though not in satory procedure is felt to have been a develop-
England. The entire process is different. The pres- ment from that of private vengeance in which the
ence of a jury in the United States forces an interested parties would be the main participants.
acceleration of the entire process because of the Instead of settling their dispute by direct conflict
difficulty and expense of getting the jury assem- or feud, a legal procedure would involve a neutral
bled and empanelled. Once that is the case, the third party who would seek to secure a settlement.
court proceeds immediately with the trial in an In such a triadic situation, as noted at the outset,
attempt to conclude as quickly as possible. the object was to secure an outcome that would
settle the matter by leaving each party feeling
In Civil law jurisdictions, civil cases go much justice had been done. In earlier times, when trial
more slowly. There is a brief preliminary stage was by battle, ordeal, or other ways, although
when pleadings are submitted to a hearing judge. seeming to be a throwback to a time of ‘‘barba-
Next follows an evidence-taking, where the hear- rous’’ cruelty, these methods, apart from their
ing judge takes notes and prepares a written rec- presumed psychological effects (the guilty party
ord. That is later submitted to the deciding judge

479

COURT SYSTEMS AND LAW

feeling he would be caught and so offering confes- plea bargaining, though not exactly like that used
sion at once), had the virtue that they brought the in America, was in fact being used in European
conflict to an end, and prevented further acts of countries. In the case of Germany, Hermann (1991)
vengeance that would disturb the peace of the reports that some kind of plea bargaining takes
community. With the accusatory practice, presum- place in from 20 to 30 percent of all cases. While
ably conflict would also be terminated but might far from the American percentage of 90 percent,
go on if each party felt justice had not been done. that is still considerable, particularly since it is
accompanied by other forms of sentence reduc-
The inquisitorial model introduced the state tion and mitigation of offenses. It is widely em-
as an active participant in the trial. Now the judge, ployed in complex cases, such as white-collar crimes,
who is after all a representative of government, is tax evasion, and drug offenses, which present
in a coalition with the prosecution against the nearly impossible evidentiary problems, as well as
third party, the defendant. Although this biases less serious crimes, which are settled with a fine. It
the process, in practice, the introduction of the is rare in cases involving violent crimes, however.
jury, the fact that proceedings are oral, as well as Bargaining occurs at all stages of a criminal pro-
limitations on the power of the judge all combine ceeding, often with the active participation of the
to make the system fair, though excesses did and judge, who may even take the initiative. A settle-
continue to exist. ment may take the form of the accused agreeing to
pay a sum of money to a charitable organization.
The criminal trial is in three parts: the investi- Other alternatives include penal orders that are
gative phase, with the public prosecutor assuming similar to nolo contendere pleas in which the ac-
an active role; the examining phase, presided over cused agrees to a fine—usually for minor misde-
by a judge who assumes an active role in examin- meanor cases, such as traffic cases. Pleas also occur
ing the evidence; and preparing a record and the if the accused makes a confession. Normally, a
trial. Judges may, if warranted, end the proceed- confession does not lead to avoidance of a trial, as
ings if they feel the evidence is not conclusive, or is the case in America. Instead, it usually leads to a
they may decide the case should go to trial. The reduction in the sentence. Other countries are
accused is entitled to legal representation as well also beginning to allow plea bargaining as many
as the right to inspect the material the judge has had been doing, but are now doing more openly.
collected. He can be questioned, but not sworn, The most striking example is that of Italy, which
and he or she may refuse to answer. Unlike the even uses the term patteggiamento, the Italian word
American system in which a defendant, if sworn, for bargain (Piazzi and Marafioti 1992; Merryman
may then be cross-examined, no comparable pro- et al., pp. 1100 ff). However, there is no reduction
cedure exists, though a refusal to answer by the of the charge, as in the American system, but there
accused may be taken into account by the jury. is a maximum reduction of one-third of the nor-
British judges assume a more active role in the trial mal sentence, which may not exceed two years,
process than is the case in the United States. which has the effect of limiting the practice to
However, this is not ‘‘inquisitorial’’ in a narrow cases with shorter normal sentences. In Italy, as is
sense but rather a reflection of the fact that in the the case in other civil law countries, the trial
English procedure the judge determines the rele- decision is made by a panel of judges, a practice
vancy of evidence, rather than the strict exclusion- which, however costly, is defended as superior to
ary and other rules emphasized in American courts. the American practice, which places what is felt to
To do their jobs, English judges are much more be excessive power in the hands of a single judge.
willing to question witnesses or even raise issues
(Glendon et al., 1982, ch.. 10). WILL COMMON LAW AND CIVIL LAW

Until the 1980s, plea bargaining was consid- SYSTEMS PERSIST?
ered to be undesirable practice, only possible in
America. But judicial scholars increasingly asked Although we have focused on differences between
how could civil law jurisdictions possibly handle all the two systems, and the differences are indeed
the criminal cases they had to decide without some substantial, there is considerable movement to-
form of plea bargaining? After a spirited debate ward the convergence of common and Civil law
and careful research, it was finally concluded that systems. The attempts to severely limit the power

480

COURT SYSTEMS AND LAW

of judges have, over the years, been recognized as how well the system serves the legal needs of the
excessive and more a holdover from fears of arbi- country. Most countries, in fact, employ a mix of
trary and class-based favoritism of judges. From systems in which one finds bits and pieces of both
the refusal to place limits on the power of legisla- common law and civil law systems.
tures, Civil law countries have developed constitu-
tional limitations, even in the form of courts, REFERENCES
though often hidden under other names. Histori-
cally, Civil law countries divided the field between Atiyah, P.S., and Robert S. Summers 1987 Form and
private and public law, with most of the concern Substance in Anglo-American Law. Oxford:
historically being with civil law (law of persons, Clarendon Press.
marriage, contracts, torts, etc.). Public law was felt
to be the concern of legislatures or the sovereign. Black, Donald 1993 The Social Structure of Right and
However, the coming of the modern state has led Wrong. San Diego, Calif.: Academic Press.
to an enormous growth of administrative law,
along with appropriate court systems, leading to Bohannon, Paul J. (ed.) 1967 Law and Warfare: Studies in
situations not much different in essence from the Anthropology of Conflict. Garden City, N.J.: Natural
those found in developed common law countries. History Press.

Civil codes have receded in significance as ——— 1957 Justice and Judgment Along the Tiv, London:
state legislatures and parliaments enact more far- Oxford University Press.
reaching laws never contemplated in earlier times,
particularly those associated with large-scale in- Boigeol, Ann 1998 ‘‘The French Bar: The Difficulties of
dustry, the welfare role of governments, complex Unifying a Divided Profession.’’ In Richard L. Abel
bodies of labor law, and especially with the emer- and Philip S. C. Lewis, eds., Lawyers in Society: The
gence of the government as an economic partici- Civil Law World, vol. 2, 258 ff.
pant in national affairs. Perhaps of greatest signifi-
cance is the emergence of new international entities, Caplow, Theodore 1968 Two Against One, Englewood
especially the European Community, before which Cliffs, N.J.: Prentice-Hall.
national codes have been slowly giving way. Of
course, that tendency may be reversed, but it Clark, David S. 1975 ‘‘Judicial Protection of the Consti-
seems strongly in process. On the other hand, tution in Latin America.’’ Hastings Constitution Law
common law countries have recognized the advan- Quarterly 2:405–442.
tages of classic civil law procedures, such as the
importance of certainty in legal decision making, ——— 1982 ‘‘The Legal Profession in Comparative
though such certainty is sought not through a code Perspective: Growth and Specialization.’’ American
but by a succession of cases. The power of judges Journal of Comparative Law 30, Supp.:163, 169.
to make decisions has been the object of attempts
by the U. S. Congress to place caps on awards for Damaska, M. 1978 ‘‘A Foreign Perspective on the Ameri-
injury, as well as the attempt of persons to bypass can Judicial System.’’ In T. J. Fetter, ed., State Courts:
courts and seek justice through changes in legisla- A Blueprint for the Future. Williamsburg, Va.: National
tion, as in cases of pollution, abortion, and other Center for State Courts.
public issues.
Dworkin, Ronald 1977 Taking Rights Seriously. London:
Is one system better than the other? The ques- Duckworth.
tion is unanswerable in that form. Even though
civil law authorities continue to be suspicious of Eisenstein, James, and Herbert Jacob 1977 Felony Justice:
lawyers, they discover they must have them and An Organizational Analysis of Criminal Courts. Boston:
grant them powers they would prefer not to. That Littel, Brown.
is, of course, a well-known problem in the United
States as well. Each system must be understood in Engel, David M. 1978 Code and Custom in a Thai Provin-
the context of the culture and social structure of cial Court: The Interaction of Formal and Informal Sys-
the country that employs it. Ultimately, any ques- tems of Justice. Tucson: University of Arizona Press.
tion of superiority must be answered in terms of
Ewick, Patricia, and Susan S. Silbey 1998 The Common
Place of Law. Chicago: University of Chicago Press.

Feifer, George 1964 Justice in Moscow. New York: Simon
and Schuster.

Felstiner, William, Richard L. Abel, and Austin Sarat
1980–1981 ‘‘The Emergence and Transformation of
Disputes: Naming, Blaming and Claiming. . .’’ Law
and Society Review 15:631–654.

481

COURT SYSTEMS AND LAW

Fuller, Leon 1969 The Morality of Law. New Haven, Howell, P. O. 1954 A Handbook of Nuer Law. London:
Conn.: Yale University Press. Oxford University Press.

Galanter, Marc 1992 ‘‘Law Abounding: Legalization Jacob, Herbert 1996 ‘‘Courts and Politics in the United
Around the North Atlantic.’’ Modern Law Review 55:1–24. States.’’ In Herbert Jacob et al., ed., Courts: Law &
Politics in Comparative Perspective. New Haven, Conn.:
——— 1983a ‘‘Mega-Law and Mega-Lawyering in the Yale University Press.
Contemporary United States.’’ In Robert Dingwall
and Philip Lewis, eds., The Sociology of the Professions. ——— 1983 ‘‘Courts as Organizations.’’ In Keith O.
London: Macmillan. Boyum and Lynn Mather, eds., Empirical Theories
About Courts. New York: Longman.
——— 1983b ‘‘Reading the Landscape of Disputes:
What We Know and Don’t Know (and Think We Klein, John F. 1976 Let’s Make a Deal. Lexington, Mass.:
Know) About Our Allegedly Contentious and Litig- Lexington Books.
ious Society.’’ UCLA Law Review 31:5–71.
Kritzer, Herbert M., W. A. Bogart, and Neil Vidmar
——— 1983c ‘‘The Radiating Effects of Courts.’’ In 1991 ‘‘The Aftermath of Injury: Cultural Factors in
Keith O. Boyum and Lynn Mather, eds., Empirical Compensation Seeking in Canada and the United
Theories About Courts. New York: Longman. States.’’ Law and Society Review 25:499–543.

——— 1974 ‘‘Why the Haves Come Out Ahead: Specu- Lev, Daniel S. 1972 ‘‘Judicial Institutions and Legal
lations on the Limits of Legal Change.’’ Law and Culture in Indonesia.’’ In Holt Claire, ed., Culture
Society Review 9:95–125. and Politics in Indonesia. Ithaca, N.Y.: Cornell Univer-
sity Press.
———, and Thomas Palay 1991 Tournament of Lawyers.
Chicago: University of Chicago Press. Levasseur, Alain 1970 ‘‘On the Structure of a Civil
Code.’’ Tulane Law Review 44:693–719.
Gessner, Volkmar, Armin Hoeland, and Csaba Varga
(eds.) 1996 European Legal Cultures. Dartmouth: MacLachland, Colin M. 1974 Criminal Justice in Eight-
Aldershot. eenth Century Mexico: A Study of the Tribunal of the
Acordada. Berkeley: University of California Press.
Gibbs, James L., Jr. 1963 ‘‘The Kpelle Moot: A Thera-
peutic Model for the Informal Settlement of Dis- Magnet, S. Rodgers 1980 ‘‘The Right to Emergency
putes.’’ Africa 33 ( Jan.):1–11. Medical Assistance in the Province of Quebec.’’ Re-
vue du Barreau, Tome 40, Numero 3, Mai-Juin, 373–447.
Glendon, Mary Ann 1987 Abortion and Divorce in Western
Law. Cambridge, Mass.: Harvard University Press. Merryman, John Henry 1985 The Civil Law Tradition>.
Stanford, Calif.: Stanford University Press.
———, Michael Wallace Gordon, and Christopher
Osakwe 1982 Comparative Legal Traditions in a Nut- ———, Davis S. Clark, and John O. Haley 1994 The Civil
shell. St. Paul, Minn.: West Publishing Co. Law Tradition: Europe, Latin America and East Asia.
Charlottesville, Va.: Michie.
Gluckman, Max 1954 The Judicial Process Among the
Barotse of Northern Rhodesia. Manchester, Eng.: Man- Mnookin, Robert, and Lewis Kornhauser 1979 ‘‘Bar-
chester University Press. gaining in the Shadow of Law: The Case of Divorce.’’
Yale Law Journal 88:950–997.
Gross, Edward 1998 ‘‘Lawyers and Their Discontents.’’
Society 36 (Nov./Dec.):26–31. Nader, Laura 1969 ‘‘Styles of Court Procedure: To
Make the Balance.: In Laura Nader, ed., Law in
Gulliver, P. H. 1969 ‘‘Dispute Settlement Without Courts: Culture and Society. Chicago: Aldine.
The Ndendeuli of Southern Tanzania.’’ In Laura
Nader, ed., Law in Culture and Society. Chicago: Aldine. Nelken, David (ed.) 1997 Comparing Legal Cultures. Dart-
mouth: Aldershot.
Haley, John Owen 1991 Authority without Power. New
York: Oxford University Press. Pospisil, Leopold 1958 Kapauka Papuans and Their Law.
New Haven, Conn.: Yale University Publications in
——— 1978 ‘‘The Myth of the Reluctant Litigant.’’ Anthropology, No. 54.
Journal of Japanese Studies 4:359–396.
Rosen, Lawrence 1989 The Anthropology of Justice. New
Heinz, John P., and Edward O. Laumann 1982 Chicago York: Cambridge University Press.
Lawyers: The Social Structure of the Bar. New York:
Basic Books. Rosenn, Keith S. 1992 ‘‘A Comparison of the Protection
of Individual Rights in the New Constitutions of
Hermann, Joachim 1992 ‘‘Bargaining Justice—A Bar- Colombia and Brazil.’’ University of Miami Inter-Ameri-
gain for German Criminal Justice?’’ University of Pitts- can Law Review 23:659–691.
burgh Law Review 53:755–776.

482

COURTSHIP

Ross Marc Howard 1993 The Culture of Conflict. New in primitive and other societies, historians have
haven, Conn.: Yale University Press. traced courtship patterns in America from coloni-
al to contemporary times, psychologists and social
G. Roth, and C. Witticg 1978 Economy and Society. Berke- psychologists have examined intra- and interper-
ley: University of California Press. sonal components of relationships, and sociolo-
gists have developed research-based theories ex-
Rouland, Norbert 1994 Legal Anthropology. Stanford, plaining the process of mate selection, and have
Calif.: Stanford University Press. investigated various courtships dynamics. Here,
some attention will be given to each of these
Sarat, Austin, and Thomas R. Kearns (eds.) 1998 Law in approaches, along the way selectively noting schol-
the Domains of Culture. Ann Arbor: University of ars who have made major contributions.
Michigan Press.
Historically, according to Rothman, the term
———, and Stuart Scheingold (eds.) 1998 Cause Lawyering. courtship applied to situations where the intention
New York: Oxford University Press. to marry was explicit (if not formally—and mutual-
ly—stated). Courting was the broader term used to
Schumpeter, Joseph A. 1976 Capitalism, Socialism and describe socializing between unmarried men and
Democracy. New York: Harper and Row. women’’ (Rothman 1984, p. 23, italics in original).

Shapiro, Martin 1986 Courts: A Comparative and Political Scholars have disagreed as to whether dat-
Analysis. Chicago: University of Chicago Press. ing—a twentieth-century term for a primarily rec-
reational aspect of courting—should be consid-
Simmel, Georg 1902 ‘‘The Number of Members as ered a part of courtship since, according to Waller
Determining the Sociological Form of the Group.’’ (1938) and others, dating may be merely thrill-
American Journal of Sociology 8:1–46, and 158–196. seeking and exploitative, and not marriage orient-
ed (but see Gordon 1981 for an opposing view).
Starr, June 1992 Law as Metaphor: From Islamic Courts to However, wooing (that is, seeking favor, affection,
the Palace of Justice. Albany, N.Y.: State University of love, or any of these) may be integral to courtship
New York Press. and yet not result in marriage. For present purpos-
es, then, courtship will be understood in its broad-
Stone, Bailey 1986 The French Parlements and the Crisis of est sense—as a continuum from casual to serious.
the Old Regime. (excerpted from Merryman et al., Thus, ‘‘the unattached flirt, the engaged college
eds., 436–437). seniors, the eighth-grade ‘steadies,’ and the mis-
matched couple on a blind date are all engaging in
Stone, Thomas 1979 ‘‘The Mounties as Vigilantes: Per- courtship’’ (Bailey 1988, p. 6).
ceptions of Community and the Transformation of
Law in the Yukon, 1885–1897.’’ Law and Society Queen, Habenstein, and Quadagno’s (1985)
Review 14:83–114. classic text provides much of the basis for the
following brief and highly generalized overview of
Watson, Alan 1977 Society and Legal Change. some mate-selection patterns unlike those found
in contemporary America. Some of these systems
Wolff, Kurt H. (trans, ed., and Introd.) 1950 The Sociolo- involved little or no courtship. For example, among
gy of Georg Simmel. New York: Glencoe Press. the ancient Chinese, Hebrews, and Romans, mar-
riage was arranged by male heads of kin groups.
Zamudio, Hector Fix 1979 ‘‘A Brief Introduction to the Among the ancient Greeks and until recently among
Mexican Writ of Amparo.’’ California Western Interna- the Chinese, many brides and grooms did not
tional Law Journal 9:306–348. meet until their wedding day. Around the turn of
the century (1900), infant marriages were the rule
Zweigert, Konrad, and Hein Kotz 1987 Introduction among the Toda of south India, and the bride was
to Comparative Law (trans. Tony Weir). Oxford: deflowered at about age ten by a man who was not
Clarendon Press. of her clan and not her husband. In medieval
England, contrary to the literature of chivalry, love
EDWARD GROSS

COURTSHIP

Given the social centrality of the family institution
and the role of courtship in the family formation
process, it is not surprising that the study of court-
ship has received attention from several disci-
plines. Anthropologists have described practices

483

COURTSHIP

had little to do with mate selection in any social personal qualities—especially morality, spirituali-
class because marriages were arranged by lords or ty, and ‘‘character.’’ Wooing was rather formal,
by parents with primary regard to the acquisition with each participant carefully evaluating the quali-
of property. ties of the other. Courtship tended to be exclusive
and directed toward marriage.
In societies where romantic love is not a basis
for mate choice, such sentiments are seen as dan- Then, from about 1900 to World War II, a
gerous to the formation and stability of desirable system evolved in which there was much ‘‘playing
marital unions—those that maintain stratification the field’’ (casual dating), gradually more exclusive
systems (see Goode 1969). Queen, Habenstein, dating (‘‘going steady’’), engagement, and finally,
and Quadagno (1985) describe still other mate- wedding—a relatively fixed sequence. Following
selection patterns that do involve some form of the war, stages of courtship were typically marked
love, including the systems found on Israeli kib- by symbols (e.g., wearing a fraternity pin, then an
butzim at midcentury, among ethnic immigrant engagement ring), each stage implying increased
groups in the United States, and among African- commitment between the partners. By the 1950s, a
Americans during slavery (see also Ramu 1989). In separate youth culture had developed. Ages at first
the twentieth century, however, and especially marriage declined dramatically, and dating started
since the 1920s, courtship in Western societies has earlier than ever before. The sexual exploration
been participant-run and based on ideas of roman- that had previously been a part of the last stage of
tic love. In the United States today, it is not uncom- courtship now occurred earlier, even in very young
mon for a couple to meet, woo, and wed almost couples.
without the knowledge of their respective kin.
‘‘Compared with other cultures, ours offers a wide During the 1960s, a time of ‘‘sexual revolu-
range of choices and a minimum of control’’ tion,’’ nonmarital cohabitation increased—not sub-
(Queen, Habenstein, and Quadagno 1986, pp. 8–9). stituting for marriage but delaying it. In the post
World War II. period and since, among the young
In colonial America, practices differed some- especially, demands for both freedom and de-
what between the North and South. In the North, pendence (i.e., the right to sexual freedom without
mate choice was participant run, but a suitor’s assuming responsibility for its multifaceted conse-
father had control over the timing of marriage quences) have been relatively widespread. Con-
since he could delay the release of an adequate currently, rates of nonmarital pregnancy rose
section of family land to his son while the son’s dramatically.
labor was still needed. Conjugal (but not roman-
tic) love was thought to be the sine qua non of In general, every society attempts to control
marriage, and couples came to know and trust one sexual activity among unmarried (and married)
another during often lengthy courtships. In the persons, but the forms of control (e.g., chaperonage)
South, a custom of chivalry developed, closely and the degree of enforcement have varied. Vir-
guarding the purity of (at least upper-class) wom- ginity, especially in women, is highly prized and
en, but condoning promiscuity among men. Pa- guarded in some cultures but has no special value
rental consent was required for the beginning of in others. Similarly, all societies attempt to limit
courtship and for marriage and open bargaining the pool of those eligible to marry, but the precise
about property arrangements was commonplace. constraints have differences across societies and
Unlike the colonial North, where marriage was from time to time. Typically, blood kin and rela-
considered a civil ceremony, in most parts of the tives by marriage (and in some cases, baptismal
South, Anglican church ministers were required relatives such as godparents) are delimited to great-
to officiate at weddings. In both regions, banns er or lesser degrees from the eligibility pool.
were published prior to weddings.
Where male elders have arranged marriages
During the 1800s, mate choice became more for their offspring (generally in ascription-based
autonomous with the growth of cities and the societies), the accumulation of family power and
spread of industrial employment. Choices were prestige has been of primary concern, with dowrys,
affected less by considerations of wealth than by bride prices, or both figuring prominently in
prenuptial arrangements. In participant-run mate

484

COURTSHIP

selection (generally in achievement-based socie- as a contest in which a struggle for power and
ties), the power and prestige of a dating partner control between partners is part of the game.
(although defined in terms other than land, cattle, Thus, courtship’s emphasis on individualism, free-
and the like) is still valuable. Good looks (however dom, commercialism, competitive spirit, and suc-
defined) in women, for instance, are a status sym- cess reflects the larger social system within which it
bol for men, and conspicuous consumption in functions. One may well ask whether such a system
men (cars, clothing, spending habits) provides can prepare participants for marriage which, un-
status for women. Thus, within the field of eligibles like courtship, requires cooperation and compro-
is a smaller field of desirables. Unfortunately, the mise for its successful survival.
qualities that are valued in dates (from among
whom a mate may be chosen) are not necessarily Efforts to predict who marries whom and why,
those one would want in a spouse. to delineate the courtship process itself, or both,
have interested a number of scholars. Based on a
Even in participant-run ‘‘free choice’’ systems, large body of theoretical and empirical work, Ad-
there is a tendency toward homogamy in the selec- ams (1979) developed a propositional theory to
tion of partners, whether conscious or not. As a explain how courtship moves from initial acquain-
society becomes more varied in its mix of persons tance toward (or away from) marriage in an achieve-
within residential, educational, religious, or work- ment-oriented society. The propositions, in slight-
related settings, the tendency toward heterogamy ly modified language, are as follows:
increases. That is, the field of eligibles and desirables
broadens. Heterogeneity leads to a prediction of 1. Proximity, which facilitates contact, is a
‘‘universal availability’’ (Farber 1964) as the salience precondition for courtship and marriage.
of social categories (such as race, age, religion and
class) declines. For example, interracial relation- 2. As time passes, marriage is increasing-
ships, once unthinkable (e.g., in the colonial Ameri- ly more likely to be with a current-
can South), increased with urbanization, industri- ly propinquitous than with a formerly
alization, and a general movement toward educational propinquitous partner.
and income equality. Social class endogamy, how-
ever, is the general preference, although women 3. Propinquity increases the likelihood that
are encouraged with varying degrees of subtlety to one will meet, be attracted to, and marry
‘‘marry up,’’ and a dating differential exists such someone of the same social categories as
that men tend to court women who are slightly oneself.
younger, physically smaller, and somewhat less
well educated or affluent than themselves. 4. Early attraction is a result of immedi-
ate stimuli such as physical attractive-
Contemporary courtship, marked as it is by ness, valued surface behaviors, and similar
freedom of choice, has been likened to a market in interests.
which the buyer must be wary and in which there is
no necessary truth in advertising. Persons com- 5. The more favorable the reactions of
pete, given their own assets, for the best marital significant others to an early relationship,
‘‘catch’’ or the most status-conferring date. Waller the more likely the relationship will
and Hill (1951) warned about the potential for progress beyond the early attraction stage.
exploitation in both casual and serious courtship
and indeed, critics of conventional dating have 6. The more positive the reaction of the
decried it as a sexist bargaining arrangement in partners to self-disclosures, the better the
which men are exploited for money and women rapport between them.
for sexual favors. The superficiality of dating, its
commercialization, the deceit involved (given con- 7. The better the rapport between the
tradictory motives), and the high levels of anxiety partners, the more likely the relationship
provoked by fears of rejection (especially in men), will be perpetuated beyond the early
are additional drawbacks. Since status differentials attraction stage.
still characterize the sexes, dating may also be seen
8. The greater the value compatibility—
consensus between partners, the more
likely that the relationship will progress to
a deeper level of attraction.

485

COURTSHIP

9. The greater the similarity in physical men than for women, while some (such as part-
attractiveness between the partners, the ner’s empathic capacity) have greater salience for
more likely that the relationship will women than for men. Second, some factors such
progress to a deeper level of attraction. as parental interference may have different out-
comes in the long run compared to the short run.
10. The more the partners’ personalities are Third, the timing of courtship may bring different
similar, the more likely that the relation- considerations into play, e.g., courtship in later life
ship will progress to a deeper level of such as following divorce or widowhood, or when
attraction. children from previous marriages must be consid-
ered (see Bulcroft and O’Connor 1986). Finally,
11. The more salient the categorical homoge- social class factors may affect the predictive value
neity of the partners, the more likely that of the propositions. There is also a difference
the relationship will progress to a deeper between traditional (male-dominated) and egali-
level of attraction. tarian relationships—the former more often found
in the working class and among certain ethnic
12. The more salient the categorial heteroge- groups, the latter more likely to characterize the
neity of the partners, the more likely that middle class. Thus, the kind of marriage one an-
the relationship will terminate either be- ticipates (traditional/egalitarian) may influence
fore or after reaching a deeper level of the mate-selection process. (See also Aronson 1972
attraction. for specifications of the conditions under which
various interpersonal attraction predictors such as
13. The greater the unfavorable parental in- propinquity and similar interests operate).
trusion, the more likely that the relation-
ship will terminate either before or after Further, as courtship has moved away from
reaching a deeper level of attraction. the fixed-stage sequence of development, it may
be viewed best from a circular-causal perspective
14. An alternative attraction to the current (Stephen 1985) in which progress is strongly influ-
partner may arise at any stage of a enced by communication within the couple, lead-
couple’s relationship. The stronger that ing to increased or decreased movement toward
alternative attraction to either partner, the marriage.
more likely that the original couple’s
relationship will terminate. The timing of marriage may be influenced by
such factors as meaningful employment opportu-
15. The greater the role compatibility of the nities for women (which may diminish their moti-
partners, the more likely that the relation- vation to marry), the increasing acceptability of
ship will be perpetuated. nonmarital cohabitation and adult singlehood (see
Stein 1981), and the effects of nonmarital preg-
16. The greater the empathy between the nancy or of various intolerable conditions (such as
partners, the more likely that the relation- violence) in the family of origin. Currently, a num-
ship will be perpetuated. ber of scholars are studying each of these topics.
They affect not only the timing of marriage but
17. The more each partner defines the other also how we define courtship.
as ‘‘right’’ or as ‘‘the best I can get,’’ the
less likely that the relationship will termi- Regarding premarital factors that contribute
nate short of marriage. to later marital adjustment, no scholar has present-
ed evidence to refute Kirkpatrick’s ([1955] 1963)
18. The more a relationship moves to the conclusions: The happiness of parents’ marriage;
level of pair communality, the less likely it adequate length of courtship; adequate sex infor-
is that the relationship will terminate short mation in childhood; a happy childhood including
of marriage. a harmonious relationship with parents; approval
of the courtship relationship by significant others;
19. The more a relationship moves through a good premarital adjustment of the couple and
series of formal and informal escalators, strong motivation to marry; homogamy along age,
the less likely it is to terminate short of
marriage (Adams 1979, pp. 260–267).

Adams (1979) also provides some warnings
about these propositions. First, some factors (such
as partner’s good looks) have greater salience for

486

COURTSHIP

racial-ethnic, and religious lines; and, later age at the use or nonuse of ‘‘safe’’ sexual practices. Re-
marriage. search continues to examine variations in premari-
tal sexual activity rates and their effects. Frazier
Murstein (1980) reviewed mate-selection schol- (1994) points out that the AIDS epidemic has not
arship from the 1970s and predicted that research- sidetracked the sexual revolution that began in the
ers would focus less on the ‘‘old standby’’ variables 1960s. This is because the forces that fueled the
such as race, class, and religion and more on the revolution are still in place, and some are intensify-
dynamic aspects of courtship. He was correct. ing—’’mobility, democratization, urbanization,
Some of the major themes that have interested women in the workplace, birth control and other
scholars in recent years are identified below. reproductive interventions, and media prolifera-
tion of sexual images, ideas, and variation’’ (p. 32).
Studies of cohabitation included early efforts Moreover, cohabitation is increasing as are the
to identify its several types (both structural and single-person household and single parenthood.
motivational). Later studies focused on the effects The pursuit of individuality and freedom contin-
of cohabitation on subsequent marital happiness, ues. Many studies show that women are more
satisfaction, and stability. The general finding across sexual today than at any previous time in this
such research is that living with someone prior to century, says Frazier. On the positive side, a great-
marriage has little or no positive effect. Instead, er openness about sexuality-related information
most studies show negative effects in terms of has occurred. The trend, as Frazier sees it, is away
happiness, satisfaction, and stability. This research from the illusions of traditional ideas about ro-
has been carried out in the United States, Canada, mance and toward a more reality-based under-
and other countries, and although the rates vary, standing between men and women. Also positive,
they are quite uniform in showing that there is a and part of the same revolution, are expanded
greater tendency to divorce among those who definitions of masculinity and femininity as the
have lived with someone (i.e., the future spouse or trend toward egalitarianism continues.
any other partner) prior to marriage than among
those who did not previously cohabit. Most schol- Unmarried households (i.e., single parenthood)
ars point out that either or both of two factors are have lost much of their past stigma, and increased
probably at work here; first, the less-than-full ac- numbers of women are choosing to remain single
ceptance of cohabitation as a lifestyle (implying over the (potentially illusory) financial security of
less or no social support for those who cohabit), marriage, notes Frazier. This is largely a function
and second, the kind of persons who choose a of women’s increased earning capacities in an
‘‘deviant’’ lifestyle—persons who are risk-takers, expanded set of labor market opportunities.
and who are less commitment-oriented. (Howev-
er, see Popenoe 1987 for a different view of co- Along with the strong trend toward later mar-
habitation in a setting where it is more normative.) riages has come declining family size. The U. S.
Department of Commerce (1992) tells us that the
As rates of sexual activity outside of marriage median age at marriage has been rising and in the
rose, and as sex was to some extent disengaged 1990s was higher than it had been a century earli-
from procreation (since the arrival of the birth er. One outcome of this is, as noted earlier, a rise
control pill in the 1960s), research and theoretical in nonmarital births. Related to this is a rise in the
interest focused on changes in sexual behavior now considerable rate of child poverty, since wom-
and values in courtship. (See Schur 1988 for a en’s (i.e., single mothers) earnings are not as high
highly negative view of the ‘‘Americanization of as single fathers or of men in general.
sex.’’) It should be noted that cohabitation appears
to be a ‘‘sexier’’ arrangement than marriage (Call, Frazier, Arikian, Benson, Losoff, and Maurer
Sprecher, and Schwartz 1955), which may account (1996) report that, among unmarried singles over
for why prior cohabitants’ marriages do not meet age thirty, reasons for remaining single have to do
their expectations and thus, may be more di- with barriers as well as choices and that men would
vorce-prone. like to marry more than would women. (This
situation is reversed among younger adults, where
Also on the negative side of the ledger, there is women are more interested in marriage than are
concern about the spread of sexually transmitted men.) Never-married adults want to marry more
diseases, including AIDS, and on factors related to

487

COURTSHIP

than do divorced adults, and divorced women beliefs gives false impressions, and has obvious
have the least desire for marriage. Again, this may implications for the spontenaiety and honesty (or
have to do with the greater options (if not econom- lack of them) of the conditions under which court-
ic parity with men) open to women in recent years. ing partners get to know one another. In this era
Both men and women state their primary reasons when dating/courtship has lost much of its coher-
for wanting to marry as love, the desire for a ence, we find advice books for young adults with
family, what they see as the ‘‘romantic’’ nature of names such as Dating for Dummies (1996) and The
marriage, a desire for economic security (which, as Complete Idiot’s Guide to Dating (1996). The titles
noted, may be illusory), and the opportunity for alone tell a story. Still other writers attempt to
regular sexual activity. However, the desire to capitalize on the old notion of a war between the
remain single—for both men and women—is linked sexes, implying that in addition to knowing little
to having unrestricted career opportunities, to the about how to date/court, we know very little about
desire for an ‘‘exciting’’ lifestyle, and to having the one another since ‘‘men are from Mars and wom-
freedom to change and experiment. Men also en are from Venus’’—unless we study such guides
identify the restrictive nature of marriage and the as Mars and Venus on a Date (Gray 1988). Under the
limits on mobility and experiences as reasons to guise of assisting daters to communicate with one
remain single, but women mention the desire to another, they present half-traditional, half-egali-
be self-sufficient and the possibility of poor com- tarian versions of how to get along with persons
munication in marriage as among their top rea- who are seen as each others’ ‘‘opposites.’’ These
sons for choosing singlehood over marriage. popular books rest on the idea that by following
their prescriptions, as in The Rules (Fein and
Around the world, childbearing by unwed Schneider 1996), our courtships will be successful
women has increased, accounting for about one- and their outcomes happy. (The Rules, interesting-
third of all births in America and northern Europe ly, is highly traditionalistic, and reads like a guide
in the mid-1990s. Despite the fact that there has for 1950s ‘‘dating success.’’)
been a recent decline in teen births in the United
States, teen pregnancies are much higher in Ameri- In contrast to these for-profit offerings, schol-
ca than in other industrialized nations, for which ars continue to study ‘‘close’’ or ‘‘intimate’’ pre-
our poor (or absent) sexuality education is often marital relationships as these have changed from
blamed (Ventura, Matthews, and Curtin 1998). stylized conventional dating to the more informal
‘‘hanging out’’ and ‘‘hooking up,’’ the latter an
The rising age at marriage and its effects have almost only just-for-sexual-purposes arrangement.
interested scholars not only in developed coun- These shifts follow in part from a weakened nor-
tries (e.g., East Germany) but also in developing mative imperative to marry (Thorton 1989) and in
countries such as Sri Lanka, Java, and sub-Saharan part from the trend toward more egalitarian rela-
Africa. One effect is the relatively large numbers tionships between the sexes. However, in almost
of young adults still living in the parental home. all research, male/female similarities and differ-
Living arrangements and other family influences ences continue to form part of the data analysis.
such as parental divorce or having had alcoholic Recent studies have examined attraction in an
parents have been studied for their effects on effort to identify its bases, and, less broadly, have
dating behavior, premarital pregnancy, violence in investigated ‘‘opening lines’’ used for meeting
courtship, and on drinking behaviors of young adults. potential partners. Which lines work, which do
not, and why are unsuccessful lines still in use?
Research shows that expectations of marriage These are among the kinds of questions that are
among those of courting age are inflated, when asked and answered by such investigations. Schol-
compared to the expectations of persons with ars working in criminal justice-related areas have
marital experience. Inflated expectations may be provided information about the use of Rohypnol,
another of the causes of subsequent divorce. Moreo- a central nervous system depressant that is ‘‘abused
ver, scholars who study conduct on dates have throughout the United States by high school and
uncovered the seeming paradox of egalitarian college students, rave and nightclub attendees,
daters who behave traditionally during the earliest and drug addicts and alcohol abusers.’’ Its use
stages of courtship. Behavior that does not reflect facilitates sexual assaults (Office of National Drug

488

COURTSHIP

Control Policy 1998). Other investigations exam- justification is explained by the practices of par-
ine dating among herpes- and HIV-infected per- ents who, when using violence against their child-
sons. On the more positive and more conventional ren, often indicate that they hit or spank ‘‘out of
side, some of the standard variables such as age love.’’ Thus, the lesson (i.e., the rationalization) is
and education have been reexamined for their learned early. Other negative aspects of courtship
impact on mate choice patterns (Qian 1998). include the study of ‘‘mind games’’ and other
facets of competition between partners, sexual
Earlier, the trend toward expanded gender aggression including date/acquaintance rape, and
roles was noted. Considerable research interest the effects of contrasts between idealized images
has been devoted to identifying the components and courtship realities.
of conventional (traditional) masculinity and femi-
ninity and their effects, and on resistance to change As courtship itself has expanded, researchers
in these stereotypes—for example, because of on- have taken a interest in an expanded range of
going conventional socialization practices and, as relationship types. For example, the romantic in-
communications experts have documented, be- volvements between lesbian women and between
cause of the effects of various media portrayals gay men have been studied in their own right, and
supporting the status quo ante. Scholars have also also for comparative purposes with heterosexual
noted the greater likelihood of relational success partnerships. A predictable area for future study is
among androgynous than among conventionally the legalization of marital relationships between
masculine men and feminine women. same-sex partners.

Research on courtship has extended to the Other innovations such as video- and comput-
study of ‘‘taboo’’ conversational topics, degrees er-matching and personal advertisements in print
and forms of honesty and deception, communica- media have also captured researchers’ attention,
tion style differences between the sexes (one result as has using the internet to make romantic con-
of differential socialization), and methods of con- tacts (sometimes called ‘‘cyberdating’’). Scholars
flict resolution that enhance relationship survival can be expected to pursue the study of the impact
or that presage relationship dissolution. Interest of prenuptial agreements on relationships. To a
in failed relationships has attempted to identify lesser extent, older lines of research have contin-
factors at both individual and dyadic levels that ued to probe the purported decline of, or changes
might have predicted which pairings would last in, the double standard, the ‘‘principle of least
and which would not. In ongoing relationships, interest’’ (Waller 1938) as related to changes in
scholars have investigated the positive and nega- gender roles, the dimensions of intimacy, and on
tive effects of outside influences such as parental desired traits in dating partners as these may differ
or peer pressure, and the parts played by same- between premarital partners and permanent mates.
and cross-sex friends. Other topics of interest have
included barriers to the development of trust and As society grows more complex and the rate of
the effect of its loss, the meanings of commitment, change is increasingly rapid, confusion over the
and the effects of self-disclosure, self-esteem, self- mate-selection process in all of its dimensions
awareness, and jealousy on close relationships. appears to be rife. A study of college student
dating shows that these young adults have ques-
We have witnessed a virtual explosion in the tions about virtually every aspect of the process
study of love—attempts to identify its forms, its and about the choices they make (Laner 1995).
properties, and its distribution of types across High divorce rates have produced a backlash of
women and men as well as the effects of all of insecurity as the marriage decision approaches.
these, especially in terms of romantic love. On the This is reflected in the frequently asked question,
negative side, a number of studies of violence in ‘‘How can I be sure of making the right choice in a
courtship have shown relatively high rates of this partner?’’ Sociologists and scholars in related dis-
kind of activity, especially between cohabitors— ciplines continue to study a growing set of factors
and also reveal that a sizable minority of those who that shed light on the answer.
have experienced violence in close relationships
identify it with a loving motive. This seemingly odd (SEE ALSO: Alternative Lifestyles; Love; Mate-Selection Theories)

489

CRIME RATES

REFERENCES Popenoe, David 1987 ‘‘Beyond the Nuclear Family: A
Statistical Portrait of the Changing Family in Swe-
Adams, Bert N. 1979 ‘‘Mate Selection in the United den.’’ Journal of Marriage and the Family 49:173–183.
States: A Theoretical Summarization.’’ In W. R. Burr,
R. Hill, F. I. Nye, and I. L. Reiss, eds., Contemporary Qian, Zhenchao 1998 ‘‘Changes in Assortative Mating:
Theories About the Family. New York: Free Press. The Impact of Age and Education, 1970–1990.’’
Demography 35(3):279–292.
Aronson, Elliot 1972 The Social Animal. New York:Viking.
Queen, Stuart A., Robert W. Habenstein, and Jill S.
Bailey, Beth L. 1988 From Front Porch to Back Seat: Quadagno 1985 The Family in Various Cultures, 5th
Courtship in Twentieth Century America. Baltimore: ed. New York: Harper and Row.
Johns Hopkins University Press.
Ramu, G. N. 1989 ‘‘Patterns in Mate Selection.’’ In K.
Browne, Judy 1996 Dating for Dummies. Foster City, Ishwaran, ed., Family and Marriage: Cross-Cultural
Calif.: IDG Books. Perspectives. Toronto: Wall and Thompson.

Bulcroft, Kris, and Margaret O’Connor 1986 ‘‘The Im- Rothman, Ellen K. 1984 Hands and Hearts: A History of
portance of Dating Relationships on Quality of Life Courtship in America. New York: Basic Books.
for Older Persons.’’ Family Relations 35:397–401.
Schur, Edwin M. 1988 The Americanization of Sex. Phila-
Call, Vaughn, Susan Sprecher, and Pepper Schwartz delphia: Temple University Press.
1995 ‘‘The Incidence and Frequency of Marital Sex
in a National Sample.’’ Journal of Marriage and the Stein, Peter J. (ed.) 1981 Single Life: Unmarried Adults in
Family 57:639–652. Social Context. New York: St. Martin’s.

Farber, Bernard 1964 Family Organization and Interac- Stephen, Timothy D. 1985 ‘‘Fixed-Sequence and Circu-
tion. San Francisco: Chandler. lar-Causal Models of Relationship Development: Di-
vergent Views on the Role of Communication in
Fein, Ellen, and Sherrie Schneider 1995 The Rules: Time- Intimacy.’’ Journal of Marriage and the Family 47:955–963.
Tested Secrets for Capturing the Heart of Mr. Right. New
York: Warner. Thornton, Arland 1989 ‘‘Changing Attitudes toward
Family Issues in the United States.’’ Journal of Mar-
Frazier, Patricia, Nancy Arikian, Sonja Benson, Ann riage and Family 51:873–893.
Losoff, and Steven Maurer 1996 ‘‘Desire for Mar-
riage and Life Satisfaction among Unmarried Het- U.S. Bureau of the Census 1992 Statistical Brief 92–13,
erosexual Adults.’’ Journal of Social and Personal Rela- Family Life Today. . . and How It Has Changed.
tionships 13(2):225–239.
Ventura, S. J., T. J. Matthews, and S. C. Curtin 1998
Frazier, Shervert H. 1994 ‘‘Psychotrends: What Kind of ‘‘Declines in Teenage Birth Rates, 1991–97; National
People Are We Becoming?’’ Psychology Today Janu- and State Patterns.’’ National Vital Statistics Reports
ary/February:32–37, 64, 66. 47(12). Hyattsville, Md: National Center for Health
Statistics.
Goode, William J. 1969 ‘‘The Theoretical Importance of
Love.’’ American Sociological Review 34:38–47. Waller, Willard 1938 ‘‘The Rating and Dating Com-
plex.’’ American Sociological Review 2:727–734.
Gordon, Michael 1981 ‘‘Was Waller Ever Right? The
Rating and Dating Complex Reconsidered.’’ Journal ———, and Reuben Hill 1951 The Family: A Dynamic
of Marriage and the Family 43:67–76. Interpretation, rev. ed. New York: Dryden.

Gray, John 1998 Mars and Venus on a Date. New York: MARY REIGE LANER
Harper-Collins.
CRIME DETERRENCE
Kirkpatrick, Clifford (1955) 1963 The Family as Process
and Institution, 2nd ed. New York: Ronald. See Criminal Sanctions; Criminology; Social
Control.
Kuriansky, Judy 1996 The Complete Idiot’s Guide to Dat-
ing. New York: Alpha Books. CRIME RATES

Laner, Mary R. 1995 Dating: Delights, Discontents, and The interpretation of crime rates seems unprob-
Dilemmas. Salem, Wisc.: Sheffield. lematic, but those sociologists who study crime
know that is not the case. Even simple counts of
Murstein, Bernard I. 1980 ‘‘Mate Selection in the 1970s.’’
Journal of Marriage and the Family 42:777–792.

Office of National Drug Control Policy 1998 ‘‘Fact
Sheet: Rohypnol.’’ Washington, D.C.: Drug Policy
Information Clearing House.

490

CRIME RATES

crime raise difficult issues. To imagine the difficul- vehicle thefts per 10,000 registered motor vehicles
ties consider two men at a bar. One of them makes may be more helpful than the number of motor
a rude comment to the other and the other person vehicles stolen.
shoves him. The person shoved strikes the other
person on the jaw before the fight is broken up. Equation (1) represents the general formula
The person hit on the jaw calls the police to the for calculating a crime rate:
scene and wants to press charges, but the person
shoved claims self-defense and that the person Crime Rate Per Base =
who shoved him is guilty of an assault. The two
men may decide that the matter is not worth ( )Number of Incidents x Base (1)
pressing and the police may agree. On the other Relevant Population Size
hand, the police may file a report that results in an
arrest. If a grand jury thinks the evidence warrants Each of the components in this formula: Base,
it, the case may go to trial. Even if the case reaches Relevant Population Size, and Number of Inci-
trial, the jury may acquit the accused.Other possi- dents, represents an important decision point when
ble steps in the process exist, but determining calculating a crime rate. Determining the most
whether a crime occurred is often difficult. The appropriate measure for each component is not as
process contains many decision points. Will the straightforward as it might first appear.
individuals involved report the incident to the
police? Will the police determine that a crime Selecting a Base: If the base is 100,000, then the
occurred? Now imagine that an interviewer asks interpretation of the rate is the number of inci-
one of these men about their history of criminal dents per 100,000. With a base of 100 the interpre-
offending or victimization. Would the individual tation is in terms of the number of incidents per
report this incident to the interviewer? Would one 100 (a percent). Reports of crime rates often ap-
of the individuals admit to an interviewer that he pear as rates per 100,000 or per 10,000. One
committed an assault? Crime counts constitute an reason for this is the relative infrequency of some
important element in the calculation of crime crimes. For example, in 1997 the number of mur-
rates, but they are only one factor. ders in the United States was 18,210 and the
population of the United States was 268 million. If
Rather than report simple crime counts, social we choose 100 for the base, we find that the
scientists often calculate crime rates. Depending homicide rate per 100 is .0068 or .0068 percent.
on the context, they may do this because crime This figure challenges the intuition of most peo-
rates: (1) allow for the comparison of crime pat- ple. We should choose the base to make the rate
terns across groupings of different sizes, (2) make easier to interpret. If we choose 100,000 for the
possible the comparison of the relative frequency base, we find that the homicide rate is 6.8 per
of crime over time, or (3) help in the assessment of 100,000; a much easier figure for most people to
the risk of victimization. In terms of comparability understand.
of patterns across groupings of different sizes,
simply reporting the number of crimes in cities Relevant Population Size: The choice of the
with 100,000 or more residents produces unsatis- relevant population size depends upon the selec-
factory results. Forty homicides may not represent tion of an appropriate ‘‘relevant population.’’ The
a large number for New York City, but twenty Uniform Crime Reports (UCR) typically chooses
homicides represent a large number in Eugene, the number of residents as the relevant popula-
Oregon. The calculation of homicide rates per tion. This number is used to calculate crime rates
100,000 residents for New York City and Eugene for cities or for the United States as a whole in the
makes comparisons between the two cities easier. UCR. The National Crime and Victimization Sur-
Similar calculations of rates for different years vey (NCVS) often uses the number of residents
facilitate comparisons over time. The number of who are twelve years of age or older as the relevant
homicides may have doubled in Los Angeles from population, since the survey only asks about crime
1920 to 1990 while the rate per 100,000 residents incidents involving those in that age range. At
has decreased. In terms of the risk of motor vehi- other times households represent the relevant
cle theft, a rate based on the number of motor population as when victimization surveys calculate
rates for households touched by crime.

491

CRIME RATES

General Definitions of Part I Offenses in the Uniform Crime Reports

Criminal Homicide Murder and nonnegligent manslaughter: the willful (nonnegligent) killing of one human being by
another. Deaths caused by negligence and justifiable homicide are excluded.

Forcible Rape The carnal knowledge of a female forcibly and against her will. Included are rapes by force
and attempts or assaults to rape. Statutory offenses (no force used and victim under age of
consent) are excluded.

Robbery The taking or attempting to take anything of value from the care, custody, or control of a person
or persons by force or threat of force or violence or by putting the victim in fear.

Aggravated Assault An unlawful attack by one person on another for the purpose of inflicting severe or aggravated
bodily injury. This type of assault is usually accompanied by the use of a weapon or by means
likely to produce death or great bodily harm. Simple assaults are excluded.

Burglary Breaking or Entering: The unlawful entry of a structure to commit a felony or a theft. Attempted
forcible entry is included.

Larceny Theft (Except Motor Vehicle Theft): The unlawful taking, carrying, leading, or riding away of
property from the possession or constructive possession of another. Attempted larcenies are
included. Embezzlement, con games, forgery, worthless checks, etc., are excluded.

Motor Vehicle Theft The theft or attempted theft of a motor vehicle. A motor vehicle is self-propelled and runs on the
surface and not on rails. Specifically excluded from this category are motorboats, construction
equipment, airplanes, and farming equipment.

Arson Any willful or malicious burning or attempt to burn, with or without intent to defraud, a dwelling
house, public building, motor vehicle or aircraft, personal property of another, etc.

Table 1

SOURCE: Federal Bureau of Investigation, 1998. Crime in the United States—1997 (Appendix II).

Thus, the total number of people may not be invoked when a burglar breaks into several units in
the most appropriate ‘‘relevant population.’’ In an apartment or hotel and only one burglary is
the case of rape incidents, it might be more appro- counted. Researchers draw a distinction between
priate to compute rape rates using women as the an incident rate and a prevalence rate. This in-
relevant population. For motor vehicle theft, the volves a distinction between the number of crimi-
relevant population might be the number of regis- nal incidents per some relevant population and
tered motor vehicles. For commercial burglaries, the number of offenders per some relevant popu-
the relevant population might be the number of lation. Using the number of offenders per some
commercial establishments. Social scientists should relevant population produces a prevalence rate.
choose these populations carefully.
Thus, many decisions help determine the most
Number of Incidents: Determining the value for appropriate crime rate for a particular purpose.
the numerator of the crime rate formula raises These decisions need to be considered when inter-
particularly difficult issues. The UCR, for exam- preting a particular rate or when attempting to
ple, employs a complicated set of rules for count- compare one crime rate with another.
ing the number of incidents. For example, the
UCR ‘‘hierarchy rule’’ ensures that for Part I crimes SOURCES OF CRIME DATA IN THE
(the most serious street crimes) only the most UNITED STATES
serious crime is recorded. Thus, if a person breaks
into a store, is confronted by the owner and threat- There are three major sources of crime data in the
ens the owner with a gun, and then kills the owner, United States, and knowing the strengths and
the offense is recorded as a homicide, but not as a weaknesses of these data sources helps explain
burglary or robbery or assault. The ‘‘hotel rule’’ is why crime rates derived from them often vary.

492

CRIME RATES

Crimes and Crime Indexes For the United States, 1997

Offenses Number Rate per 100,000 Percent Change
Inhabitants in the Rate
Crime index total 13,175,100
Violent crime index 1,634,770 4,922.7 From 1988 to 1997
18,210 610.8
Homicide 96,120 6.8 -13.1
Forcible rape 497,950 35.9 -4.1
Robbery 1,022,490 186.1
Aggravated assault 382.0 -19.0
11,540,300 -4.5
Property crime index 2,461,100 4,311.9
Burglary 7,725,500 919.6 -15.8
Larceny-theft 1,353,700 -3.2
Motor vehicle theft 2,886.5
505.8 -14.2
-29.8

-7.9
-13.2

Table 2

SOURCE: Data are from Crime in the United States—1997 (Federal Bureau of Investigation 1998, Table 1)

These three methods are similar to those used to burglary. In such a jurisdiction an incident in
collect crime data internationally: (1) official data which an offender entered a house through an
collected by law enforcement agencies, (2) surveys open window in order to steal a stereo would be
of the victims of crimes, and (3) self-report studies coded as unlawful entry with intent to commit a
based on offenders. Other sources also are avail- crime for the purposes of the state’s law, but as a
able, but less commonly used (e.g., vital statistics, burglary for UCR purposes.
hospital records, and insurance records).
Participation in the UCR is voluntary. Local
The Uniform Crime Reports. During the lat- law-enforcement agencies send their data to the
er half of the 1920s the International Association FBI or to state-level UCR programs that forward
of Chiefs of Police (IACP) developed uniform the data to the FBI. In the early years only the
crime definitions and counting rules that would largest law enforcement agencies in the United
allow it to collect more comparable data from States participated. But by the 1980s and 1990s,
different law enforcement agencies. The IACP agencies representing about 97 percent of the
initiated the UCR in January of 1930. During the population of the entire United States participat-
latter part of 1930 the Bureau of Investigation ed. The FBI reports two types of crime: Part I
took over the UCR program, and it has remained a crimes and Part II crimes. For Part I crimes, data
function of that bureau (renamed the Federal on crimes known to the police and on arrests are
Bureau of Investigation, or FBI). reported; for Part II crimes, only data on arrests
are reported. Part I crimes include violent crimes
The general definitions of the UCR Part I (murder and non-negligent homicide, forcible rape,
offenses appear in Table 1, but more detailed robbery, and aggravated assault), property crimes
definitions appear in the Uniform Crime Reporting (burglary, larceny-theft, and motor vehicle theft),
Handbook (FBI 1985). As an example, the Uniform and arson. Each year the news media report crime
Crime Reporting System defines burglary as the rates derived from the FBI data and a summary of
unlawful entry of any fixed structure, vehicle, or these data appear annually in Crime in the United
vessel used for a regular residence, industry, or States. This FBI publication provides crime rates
business, with or without force, with the intent to for states, metropolitan statistical areas, counties,
commit a felony, or larceny. Without uniform cities, other geographical subdivisions, and the
definitions, jurisdictions in which state law defines nation as a whole.
theft from a storage-shed as a burglary would
report such an incident as a burglary to the FBI. In Table 2 presents Part I crime data from the
another jurisdiction, breaking and entering might publication Crime in the United States—1997 (FBI
be required for an incident to be classified as a 1998). The second column presents the number of

493

CRIME RATES

incidents of a specific type, the third column re- survey of the victims of crime, it does not record
ports the rate per 100,000 residents, and the final homicides, but it does record forcible rapes and
column indicates the change in the rate over a ten sexual assaults, robberies, aggravated assaults, sim-
year period. In 1997, for example, 1,634,770 vio- ple assaults, burglaries, larceny-thefts, and motor-
lent crimes were known to the police. The rate of vehicle thefts. It also provides details about the
violent crimes was 610.8 per 100,000 persons, victims of crime not available in the UCR. These
which represents a decrease in the rate of violent include the household income of the victim, any
crimes from 1988 to 1997 of 4.1 percent. Officially injuries sustained by the victim, insurance cover-
reported crime rates fell in all Part I categories age, length of any hospitalization due to injuries,
from 1988 to 1997. what protective measures the victim employed,
and so on.
Crimes reported or discovered by the police
and found through investigation to have occurred Careful field-testing preceded the initiation of
are labeled ‘‘crimes known to the police.’’ A crime data collection for NCVS in 1973 and before any
found not to have occurred is ‘‘unfounded,’’ and changes made to its design since that time. An
does not appear as a crime known to the police. early decision involved the length of the reference
Although occasionally police discover a crime be- period (the period the interviewers referred to
ing committed (e.g., they happen upon a burglary when they asked whether victimizations occurred
in progress, or they arrest someone for resisting a during the past period). Researchers chose a six-
police officer) they are highly dependent on citi- month reference period on the basis of the costs of
zen reports of criminal incidents. doing more frequent surveys and studies that
showed the effect of memory decay on remember-
The UCR also provides data on arrests for ing whether an event occurred. Respondents tend
Part I and Part II crimes, and reports these crimes to telescope events into the reference period, and
on the basis of the geographical divisions described this can cause substantial increases in the number
above. Since these data are for arrests, the rates of victimizations reported during the past six
calculated from them should be labeled ‘‘arrest months. To overcome this problem, each respon-
rates.’’ Part II crimes include: other assaults (not dent remains in the sample for three years with
including aggravated assaults), forgery and interviews repeated every six months. Victimiza-
counterfeiting, fraud, embezzlement, stolen prop- tions reported to the interviewer the first time a
erty (buying, receiving, and possessing), vandal- respondent is interviewed do not contribute to
ism, weapons (carrying, possessing, etc.), prostitu- estimates of the crime rates. That first interview
tion and commercialized vice, sex offenses (except and subsequent interviews provide bounds for the
forcible rape and prostitution), drug abuse viola- six-month reference period. The interviewer asks
tions, gambling, offenses against family and child- about victimizations occurring since the last inter-
ren, driving under the influence, liquor law viola- view and has a list of incidents reported in the last
tions, drunkenness, disorderly conduct, vagrancy, interview to make sure that those incidents are not
curfew and loitering law violations, and runaways. telescoped into the reference period.

National Crime and Victimization Survey To estimate rates for the entire nation from
(NCVS). The NCVS data come from large surveys the NCVS data, researchers use the samples to
using probability samples of respondents. Since estimate the number of victimizations occurring in
1973 a national-level program has surveyed a proba- the entire nation. They then use these estimates to
bility sample of U.S. households. The U.S. Census calculate victimization rates. The derived estimates
Bureau conducts the survey, and during the 1990s often contain large sampling errors, since they are
the sample contained some 60,000 households based on only a ‘‘small’’ sample of the total popula-
and approximately 100,000 respondents. The re- tion of the United States. These large sampling
sults of this survey have been published annually errors are greatest for the crimes least frequently
since 1973 by The U.S. Department of Justice in reported by the respondents, for example, victimi-
Criminal Victimization in the United States. zation rates for rapes involve more sampling error
than rates for aggravated assault (O’Brien 1986).
The NCVS collects data on a much smaller
number of crimes than the UCR. Since it is a

494

CRIME RATES

Self-Reports. Unlike the UCR and NCVS, self- parents or cheating on a test). The sample sizes,
report studies refer to a collection of studies con- even in the largest of such surveys, are not nearly
ducted by different researchers using a variety of as large as sample sizes in the NCVS. Therefore,
methodologies. The basic methodology, however, given the relative infrequency of serious crimes,
involves sampling respondents and questioning the rates for serious crimes are not very precisely
them about criminal or delinquent acts. Although measured by self-report surveys; that is, the esti-
some isolated self-report studies occurred in the mates have large standard errors. Nonetheless,
1940s, the technique gained popularity with the crime rates derived from self-report studies pro-
work of Short and Nye (1957, 1958). vide much of the data used to investigate the
determinants of individual criminal offending.
Perhaps the most ambitious self-report study
is the National Youth Survey, or NYS (Elliott et al. SOME PROBLEMS WITH UCR, NCVS, AND
1983). This survey involves a national panel sam- SELF-REPORT DATA
ple. When first instituted in 1976, the panel mem-
bers were aged eleven to seventeen. Estimates of Using information from official data (UCR), vic-
national-level crime rates for the age groups cov- timization surveys (NCVS), and self-report surveys
ered in this survey can be computed because the helps us to gauge the accuracy of crime rates.
sample of respondents is a national one. These Crime rates vary depending upon whether they
rates, unlike UCR- and NCVS-based rates, result derive from UCR, NCVS, or self-report data. To
from respondents answering questions about their understand why crime-rate estimates vary depend-
offenses. ing upon their source, we briefly outline some
problematic aspects of these three data sources.
The NYS, and other self-report surveys, calcu-
late two types of crime rates: ‘‘prevalence rates’’ UCR Data. The most obvious problem with
and ‘‘incidence rates.’’ To calculate these crime UCR data involves underreporting of crimes to
rates, the NYS uses the general formula represent- the police. The NCVS interviewers ask respon-
ed in Equation (1). The prevalence rate uses the dents whether they reported a particular incident
number of respondents who claimed they commit- to the police. In 1994, 78 percent of the respon-
ted an offense for the numerator, the number of dents who reported a motor vehicle theft to the
respondents for the relevant population size, and interviewer said they reported that crime to the
(we choose) 100 for the base. This yields the police, 50 percent of the burglaries were reported,
percentage of respondents who have committed a 50 percent of the robberies, and only 32 percent of
particular act. In the NYS in 1980, when the re- rapes and sexual assaults (U.S. Department of
spondents were fifteen to twenty-one years old, Justice 1997).
the prevalence rate for robbery was 2. The inci-
dence rate uses the number of times individuals Once an incident comes to the attention of the
claimed they committed a particular act as the police a number of factors influence whether the
numerator, the number of respondents as the incident is recorded as a crime or whether an
relevant population size, and typically uses 100, arrest is made. There may be organizational pres-
1000, or 10,000 for the base. We again use 100 for sures to raise or lower the crime rate (e.g., Bell
the base and find that in the 1980 NYS the incident 1960; Chambliss 1984; DeFleur 1975; McCleary et
rate for robbery was 10. Thus, there was an aver- al. 1982; Selke and Pepinsky 1982; Sheley and
age of ten robberies per 100 respondents in this Hanlon 1978; Wheeler 1967). The professional
age group in 1980, with only two out of 100 styles of particular police departments may affect
respondents claiming involvement in a robbery. the recorded crime rates (Beattie 1960; Skogan
1976; Wilson 1967, 1978). The interactions be-
As with the NCVS, self-report studies depend tween officers and offenders also help determine
upon the accuracy of respondent reports. There- the classification of an incident as a crime and
fore, issues such as telescoping, recall, and embar- whether an arrest is made (Black 1970; Smith and
rassment are consequential for self-reports of crimi- Visher 1981; Visher 1983). Given these and other
nal activities. In comparison to the UCR and NCVS, problems, it is not surprising that crime rates
many of the crimes reported in self-report surveys recorded by the UCR are known to contain sub-
are trivial crimes or not crimes at all (e.g., lying to stantial errors.

495

CRIME RATES

NCVS Data. The NCVS may well provide a before, and only 30 percent of those occurring ten
more accurate picture of crime rate trends and to twelve months before.
comparative crime rates than the UCR. As Sellin’s
(1931, p. 346) dictum suggests, ‘‘the value of a Self-Report Data. Like UCR and NCVS data,
crime for index purposes decreases as the distance self-report data contain their own weaknesses. As
from the crime itself in terms of procedure in- with the NCVS data, the survey research situation
creases.’’ Further, the NCVS standardizes the pro- raises questions of honesty, forgetting, bounding
cedures it uses in compiling crime incidents. When the reference period, and so on. Some problems
the NCVS changes its procedures, careful meth- are more severe than those encountered by the
odological studies evaluate the changes. NCVS. One of these problems is sample size; even
the best-financed surveys—like the National Youth
Although the incidents reported to NCVS in- Survey (Elliot et al. 1983)—have samples of less
terviewers need not depend upon a respondent than 2,000. Such small samples almost guarantee
contacting the police, the police responding to the large sampling errors associated with the resulting
contact, and eventually police recording of the crime rates (especially for serious crimes). Small
incident as founded, respondents do need to re- sample size further limits the usefulness of these
spond appropriately in an interview situation in data for conducting regional analyses (e.g., esti-
order for an incident to be recorded as a victimiza- mating the crime rates for states or cities). Similar-
tion in the NCVS. In this context, note that the ly, it limits the accuracy of these estimates for
interview situation is a social interaction. The in- comparing the crime rates for groups such as
terviewers have little to offer respondentd for Hispanics or Asian females. Unlike the NCVS,
their time. Respondents may be reluctant to share many self-report surveys do not involve panels in
embarrassing information with the interviewer, which respondents are reinterviewed over an ex-
such as a fight at a bar, an assault by a relative, or a tended period of time (the NYS is an exception) so
sexual assault. As noted earlier, sometimes respon- that the interviews cannot be bounded. Often the
dents may forget about incidents or telescope the response rates are quite low. In the NYS (Elliot et
incidents into or out of the reference period. al. 1983), a sample of 2,360 eligible youth original-
ly were selected and of these 73 percent agreed to
Turner (1972) used ‘‘reverse record’’ checks participate in the first wave of data collection in
to investigate 206 cases of robbery, assault, and 1976. By 1980 the sample size dropped to 1,494 or
rape found in police records. Interviewers inter- 63 percent of the original sample. This contrasts
viewed these ‘‘known victims’’ using an NCVS-like with initial response rates well in excess of 90
technique. Only 63.1 percent of these ‘‘known percent for the NCVS.
incidents’’ were reported to interviewers. The per-
centage reporting these incidents to the interview- Two other issues need mention. First, self-
er was strongly related to the relationship of the report studies concentrate on relatively trivial be-
offender to the victim. Respondents reported 76.3 haviors, such as lying to parents, defying authority,
percent of the incidents involving a stranger; 56.9 or cheating on tests. One reason for concentrating
percent of the incidents involving known offend- on such behaviors is that they are more commonly
ers; and only 22.2 percent of the incidents involv- reported. Given the small sample sizes typical of
ing a relative. self-report studies, these behaviors may be more
reliably measured. Second, some studies do not
Not all of this underreporting of incidents to accurately gauge the frequency of ‘‘delinquent
the interviewers is attributable to embarrassment. behaviors.’’ They use response sets such as ‘‘no,’’
Turner (1972) found a strong relationship be- ‘‘once or twice,’’ or ‘‘several times.’’ Experienced
tween the number of months between the inter- researchers now ask about a wide range of behav-
view and the incident and the respondents’ report- iors and more specifically ask about the frequency
ing of the incident to the interviewer. Respondents of these behaviors. In the NYS, Elliot et al. (1983)
recalled 69 percent of the incidents occurring one ask about ‘‘arson,’’ ‘‘prostitution,’’ and ‘‘physical
to three months before the interview, 50 percent threat for sex’’ as well as ‘‘skipped class’’ and
of those occurring four to six months before, 46 ‘‘didn’t return change.’’ They use response catego-
percent of those occurring six to nine months ries such as ‘‘2–3 times a day,’’ ‘‘once a day,’’ ‘‘2–3
time a week,’’ ‘‘once a week,’’ ‘‘once every 2–3

496

CRIME RATES

weeks,’’ and ‘‘once a month,’’ as well as asking the absolute rates. In 1994, for example, the NCVS
exact number of times respondents offended dur- estimated 1,764,000 motor vehicle thefts based on
ing the past year. respondents’ answers, while the UCR reported
1,539,100 motor vehicle thefts known to the po-
COMPARISONS OF CRIME RATES lice. Thus the NCVS estimate exceeded the UCR
GENERATED FROM UCR, NCVS, AND SELF- estimate by only 28 percent. When NCVS respon-
dents report a motor vehicle theft they are asked if
REPORTS they reported the theft to the police. Based on
their responses one would calculate that the police
Fortunately, the problems outlined above do not receive reports of only 1,379,448 motor vehicle
mean that crime rates based on UCR, NCVS, and thefts, which is fewer motor vehicle thefts than
self-reports are not useful. Homicide rates, for appear in the UCR records. This probably occurs
example, are probably reasonably accurate in terms because motor vehicle thefts from private citizens
of absolute rates and in terms of homicide trends constitute only 80 to 85 percent of the total num-
over the past sixty-five years. They also are appro- ber of such thefts known to the police (Biderman
priate for comparisons of homicide rates across and Lynch 1991). For the remaining Part I crimes
large cities. When we judge the usefulness and covered by both the UCR and NCVS (personal
accuracy of crime rates, the type of crime consid- robbery, aggravated assault, residential burglary,
ered is important (e.g., homicide or rape). Fur- and rape), the NCVS and UCR data show greater
ther, even if a crime rate is inaccurate in terms of differences in absolute rates. The smallest ratio of
the absolute amount of crime it represents, it may NCVS incidents to UCR incidents is 1.62 for rape
be an accurate measure of the relative amount of and the largest 3.01 for residential burglary.
that crime in different areas or across time. This
would be the case if exactly half or some other Difficulties arise when comparing the self-
proportion of the aggravated assaults were report- report rates to UCR and NCVS rates, because self-
ed in different jurisdictions (or across time). Then report studies typically only involve a sample of
we could perfectly compare the relative amount of young people. The estimated crime rates for these
crime across jurisdictions (or crime trends over young people, however, are so high that we may
time). If only approximately the same proportion conclude that the rates generated by self-reports
of cases were reported across jurisdictions, then are far greater than those generated by either the
comparisons of the relative amount of crime would NCVS or the UCR. The 1976 NYS produced an
only be approximate. estimated incident rate for eleven to seventeen
year-olds for aggravated assault of 170 per 1000
Measuring Absolute Crime Rates. The most and for robbery a rate of 290 per 1000. This
accurately measured UCR Part I crime almost compares with rates for those twelve year-olds and
certainly is homicide. The reasons for this include over of 7.90 and 6.48 based on the NCVS and rates
the seriousness of the crime and the physical for all ages of 2.29 and 1.96 based on the UCR.
evidence it produces (e.g., a body, weapon, or Some part of this discrepancy results from differ-
missing person), which make it unlikely that once ences in the age groups compared, but not all of it.
detected this crime will be ignored. Cantor and In 1976 eleven to seventeen year-olds comprised
Cohen (1980) compared homicide rates based on 13.38 percent of the population. Thus, even if it
the U.S. Department of Health, Education, and were assumed that no assaults or robberies were
Welfare’s Annual Vital Health Statistics Report with committed by other age groups, the aggravated
those from the UCR for the years 1935–1975 and assault rate based on the NYS would be [.1338 ×
found a very close correspondence. Using a differ- 170 =] 22.75 and the rate for robbery would be
ent approach, O’Brien (1996) found evidence that [.1338 × 290 =] 38.80.
fluctuations in the homicide rate closely paralleled
fluctuations in the rate of other violent crimes Measuring Relative Crime Rates. If absolute
from 1973 to 1992. rates are well measured, then relative rates of
crimes across cities or other units probably are
Motor vehicle theft is the other Part I crime well measured. This means that both homicide
that appears to be well estimated in terms of rates and motor vehicle theft rates should be good

497

CRIME RATES

measures of the relative rate of crime. In the mid- stating that 33.2 percent of the offenders are
1970s the NCVS conducted victimization studies African American and the UCR arrest data indicat-
with reasonably large size samples; 10,000 or more ing that 42.7 percent of those arrested are African
households containing some 22,000 respondents, American. For robbery, aggravated assault, and
in each of twenty-six large U.S. cities. The same simple assault the differences do not exceed 5
cities, of course, reported UCR crime rates for percent.
Part I crimes. This provided the opportunity to
compare the consistency of these estimates in Self-report data at one time were considered
terms of the relative crime rates measured by the to be inconsistent with UCR data, which indicated
NCVS and the UCR by correlating the two crime- that males committed crimes at a much higher rate
rate measures across the twenty-six cities. The than females and that African Americans also
closer these correlations are to 1.00, the greater committed crimes at a much higher rate than
the degree to which cities with relatively high rates whites. These large differences between males and
(low rates) on one of the measures have relatively females and African Americans and whites, how-
high rates (low rates) on the other. Across these ever, are not found when self-report studies ask
cities, the correlation of UCR and NCVS motor about more serious crimes and ask more carefully
vehicle theft rates was .90 or higher (Nelson 1978, about the frequency of offending (Elliot and Ageton
1979; O’Brien, Shichor, and Decker 1980). The 1980; Hindelang, Hirschi, and Weis 1979).
correlations were close to zero for rape, negative
for aggravated assault, and positive and moderate- These comparisons only touch on the issue of
ly strong for burglary and robbery. This indicates the appropriate uses of UCR, NCVS, and self-
that for burglary and robbery the relative rates of report data. The appropriate uses depend upon
crime in these cities are similar whether the UCR the type of crime and the type of comparison. (For
or NCVS measures are used, but they are not helpful information on which to judge the appro-
similar for rape and aggravated assault. priate uses of these data see Biderman and Lynch
1991; Gove Hughes and Geerken 1985; O’Brien
Overall, the use of homicide rates and motor 1985, 2000).
vehicle theft rates to measure the relative amount
of these crimes across cities is supported by the INTERNATIONAL DATA
above findings. The use of burglary and robbery
rates receives weaker support, and the use of rape Many nations collect data from law enforcement
and aggravated assault rates to compare the rela- agencies, survey victims, and conduct self-report
tive amount of these crimes across cities does not surveys. Difficulties arise, however, when compar-
receive support. ing these data, since the definitions of crimes and
the counting rules differ from nation to nation. In
Gender and Race Composition of Offenders. this section we note some of these problems and
Hindelang (1978, 1979) addressed the issue of cautiously present crime-rate data for two nations.
whether the UCR and victim reports (NCVS) pro- In addition, for a larger number of nations, we
duce similar percentages of offenders identified as present homicide rates.
African American or white or as male or female.
O’Brien (1995, 2000) replicated these finding us- Perhaps the most comparable large national
ing more recent data. These comparisons indicate victimization surveys are the NCVS (conducted in
that for those crimes in which the victim and the United States) and the British Crime Survey
offender come into contact (which enables the (conducted in England and Wales). But even in
victim to identify the race and sex of the offender), this case, there are important differences—the
the percentages based on the UCR and NCVS are British Crime Survey (BCS) uses a twelve-month
fairly similar. For example, O’Brien (2000) aggre- reference period and unbounded interviews, while
gates data for the years 1992 to 1994 and finds that the NCVS uses a six-month reference period and
the percentages of males involved in these crimes, bounded interviews. The former difference should
according to the UCR and NCVS, never differ by decrease the estimated victimization rates in the
more than 3 percent. For race of the offender, BCS due to ‘‘memory decay,’’ but the latter should
rape produces the largest difference with victims increase these rates due to ‘‘telescoping.’’ The
BCS does not ask about crimes involving victims

498

CRIME RATES

under the age of sixteen, while the NCVS does not Victim Survey Crime Rates per 1,000
ask about crimes involving victims under age twelve. in the United States and England:
1981 and 1995
Further problems arise with the definitions of
offenses. In the United States, for example, aggra- 1981 1995
vated assaults include attempted murders and al- U.S. England U.S. England
most any assault in which a weapon is used or
assaults for the purpose of inflicting severe or Robbery 7.4 4.2 5.3 7.6
aggravated injury. In England attempted murders Assault 12.0 13.1 8.8 20.0
receive separate treatment while the assaults most Burglary 105.9 40.9 47.5 82.9
similar to Part I aggravated assaults are ‘‘woundings.’’ Motor Vehicle 10.6 15.6 10.8 23.6
Woundings require some kind of cut or wound
where the skin or a bone is broken, or medical Theft
attention is needed, whereas common assault oc-
curs if the victim is punched, kicked or jostled, Table 3
with negligible or no injury.
SOURCE: Langan and Farrington 1998.
Since 1981 definitions of rape have changed
substantially in England. Until 1981, to be classi- table, we report rates per 100,000 residents be-
fied as a rape an incident required a male offender cause of the relatively low rates for homicide and
and female victim and the penetration of the rape. The rates in Table 4 reinforce the patterns
vagina by the penis. Husbands could not be con- reported in Table 3, which showed a substantial
victed of raping their wives, and males under age increase in crime rates from 1981 to the mid-1990s
fourteen could be convicted of a rape. By 1996 in England for robbery, assault, burglary, and
rapes could involve offenders as young as ten, motor vehicle theft. Table 4 also shows higher
spousal victims, male victims, and anal intercourse. rates for these crimes (except for robbery) in
In the United States, the UCR definition of rape England than in the United States in 1996. Two
includes male victims, male or female offenders, new crimes appear in this table: Homicide, for
spousal victims, anal intercourse, and other sexual which the rate in the United States is several times
acts. With these nontrivial problems in mind, we higher than in England, for both 1981 and 1996
compare crime rates (based both on surveys and (most criminologists agree that homicide rates in
police records) in England and the United States. the United States are very high by international
standards) and rape, which shows a dramatic in-
Table 3 presents victimization rates for rob- crease from 4.19 to 21.77 per 100,00 in England
bery, assault, burglary, and motor vehicle theft in (this results, at least in part, from changes in the
the United States and England (based on the legal definition of rape that occurred in England
NCVS and the BCS) for the years 1981 and 1995 between 1981 and 1996).
(Langan and Farrington 1998). Perhaps the most
surprising result is that the estimated victimization Although we could attempt other compari-
rates in England are higher than in the United sons, most such comparisons involve even greater
States for these crimes in 1995. The surveys also difficulties than those between the United States
indicate substantial increases in robbery, assault, and England. Some countries do not differentiate
burglary, and motor vehicle theft from 1981 to between simple and aggravated assaults; others do
1995 in England and decreases for all but motor not record any but the most severe assaults when
vehicle theft in the United States. The cross-coun- the assault occurs within the family. As noted, legal
try comparisons of these absolute rates may be definitions of rape may differ widely (even over
more problematic than over-time comparisons with- time within the same country), reports of burgla-
in the countries—given that the victimization sur- ries may require breaking and entering into a
vey methods and the definitions of these four business or residence, only entering, or even break-
crimes changed little in these countries over ing into an outbuilding.
this period.
Homicide represents the crime with the most
Table 4 presents crime rates based on police consistent definition across countries: the inten-
records (Langan and Farrington 1998). In this tional taking of another person’s life without legal
justification. Even here some countries may not
separate justifiable from unjustifiable homicides.

499

CRIME RATES

Police Recorded Crime Rates Intentional Homicide Rates per 100,000
per 100,000 in the United States in Selected Nations in 1990

and England: 1981 and 1996

1981 1996 Austria .52 Italy 3.11
U.S. England U.S. England Japan .50
Barbados 11.76 Madagascar
Norway 1.31
Botswana .46 Spain .99
Sri Lanka .71
Homicide 9.83 1.13 7.41 1.31 Bulgaria 2.52 Sweden
4.19 70.79 21.77 Switzerland 2.17
Rape 70.59 40.86 202.44 142.35 Canada 2.22 Turkey 1.41
197.49 388.19 439.60 United States 1.64
Robbery 258.75 1447.36 942.95 2239.15 Denmark .80 1.64
670.09 525.93 948.83
Assault 289.73 Egypt 1.07 9.4

Burglary 1649.47 Fed. Rep. of Germany 2.13

Motor Vehicle 474.72 India 4.24

Theft Israel 2.30

Table 4 Table 5

SOURCE: Langan and Farrington 1998. SOURCE: United Nations Crime and Justice Information Network
1998. http://www.ifs.unvie.ac.at/ uncjin/mosaic/at.inthom/
txt.

The legal justifications for killing a spouse or even difficult. Designating the base represents the easi-
a person committing a crime may vary from coun- est decision. This choice does not greatly change
try to country, as may the reporting and recording the interpretation of the rate, although it may
of homicides. Still, the data for this crime rate make the interpretation more or less intuitive for
almost certainly are more accurate for internation- the reader. Choice of the appropriate relevant
al comparisons than those for rape, robbery, bur- population size is more difficult; for example,
glary, assault, theft, or arson. basing rape rates on the number of females rather
than the number of people or the motor vehicle
Table 5 presents data for 1990 from the Unit- theft rate on the number of registered motor
ed Nations (United Nations Crime and Justice vehicles rather than the number of people. Deter-
Network 1998) on intentional homicide rates per mining the number of incidents constitutes the
100,000 for a selected set of countries. The rate for most problematic component of calculating crime
the United States was taken from the UCR (FBI rates. Here, the differing definitions of crimes,
1991). Note the wide range of homicide rates, with varying counting rules, response rates, rates of
Barbados and the United States with relatively reporting incidents to the police or interviewers,
high rates and Austria, Botswana, Denmark, Ja- response categories, bounding of interviews, memo-
pan, Norway, and Spain with relatively low rates. ry decay, police discretion in recording crimes,
There probably are real differences between these and so on, can greatly affect the estimated crime
two sets of countries in terms of homicide rates. It rate. These factors differentially affect estimates of
is less clear that smaller differences across coun- the number of incidents based on self-reports,
tries with rather different legal systems, levels of UCR, and NCVS data. Even so, within the United
development, and cultural histories, represent dif- States for certain crimes and comparisons, data
ferences in the unjustifiable intentional taking of from these different sources lead to similar con-
another person’s life. To reiterate the difficulty in clusions. Comparisons of crime rates across na-
making cross-national comparisons, we note that tions, with the possible exception of homicide, is
INTERPOL’s international crime statistics come extremely risky.
with the warning: ‘‘the information given is in no
way intended for use as a basis for comparisons REFERENCES
between different countries.’’
Beattie, Ronald H. 1960 ‘‘Criminal Statistics in the
CONCLUSIONS United States—1960.’’ Journal of Criminal Law, Crimi-
nology, and Police Science 51:49–65.
At the beginning of this article we noted that the
computation of a crime rate might seem straight- Bell, Daniel 1960 ‘‘The Myth of Crime Waves.’’ In
forward, but designating the most appropriate Daniel Bell, ed., The End of Ideology: On the Exhaustion
term for each component in equation (1) often is of Political Ideas in the Fifties. New York: Free Press.

500

CRIME RATES

Biderman, Albert D., and James P. Lynch 1991 Under- McCleary, Richard, Barbara C. Nienstedt, and James M.
standing Crime Incidence Statistics: Why the UCR Di- Erven 1982 ‘‘Uniform Crime Reports as Organiza-
verges From the NCS. New York: Springer-Verlag. tional Outcomes: Three Time Series Experiments.’’
Social Problems 29:361–372.
Black, Donald J. 1970 ‘‘The Production of Crime Rates.’’
American Sociological Review 35:733–748. Nelson, James F. 1978 ‘‘Alternative Measures of Crime: A
Comparison of the Uniform Crime Report and the Nation-
Cantor, David, and Lawrence E. Cohen 1980 ‘‘Compar- al Crime Survey in 26 American Cities.’’ Presented at
ing Measures of Homicide Trends: Methodological the American Society of Criminology, Dallas, Tex.
and Substantive Differences in Vital Statistics and
Uniform Crime Report Time Series (1935–1975).’’ ——— 1979 ‘‘Implications for the Ecological Study of
Social Science Research 9:121–145. Crime: A Research Note.’’ In William H. Parsonage,
ed., Perspectives on Victimology. Beverly Hills, Calif.: Sage.
Chambliss, William J. 1984 ‘‘Crime Rates and Crime
Myths.’’ In William J. Chambliss, ed., Criminal Law in O’Brien, Robert M. 1985 Crime and Victimization Data.
Action. New York: John Wiley. Beverly Hills, Calif.: Sage.

Defleur, Lois B. 1975 ‘‘Biasing Influences on Drug ——— 1986 ‘‘Rare Events, Sample Size, and Statistical
Arrest Records: Implications for Deviance Research.’’ Problems in the Analysis of NCS (National Crime
American Sociological Review 40:88–103. Survey) City Surveys.’’ Journal of Criminal Justice
14:441–448.
Elliott, Delbert S., and Suzanne S. Ageton 1980 ‘‘Recon-
ciling Race and Class Differences in Self-Reported ——— 1996 ‘‘Police Productivity and Crime Rates:
and Official Estimates of Delinquency.’’ American 1973–1992.’’ Criminology 34:183–207.
Sociological Review 45:95–110.
——— 2000 ‘‘Crime and Victimization Data.’’ In Joseph
———, David Huizinga, Brian A. Knowles, and Rachelle F. Sheley, ed., Criminology. New York: Wadsworth.
J. Canter 1983 The Prevalence and Incidence of Delin-
quent Behavior: 1976–1980: National Estimates of Delin- ———, David Shichor, and David L. Decker 1980 ‘‘An
quent Behavior by Sex, Race, Social Class and Other Empirical Comparison of the Validity of UCR and
Selected Variables. Boulder, Colo.: Behavioral Research NCS Crime Rates.’’ Sociological Quarterly 21:301–401.
Institute.
Selke, William L., and Harold E. Pepinsky 1982 ‘‘The
Federal Bureau of Investigation 1985 Uniform Crime Politics of Police Reporting in Indianapolis, 1948–
Reporting Handbook. Washington, D.C.: U.S. Govern- 1978.’’ Law and Human Behavior 6:327–347.
ment Printing Office.
Sellin, Thorsten 1931 ‘‘The Bias of a Crime Index’’
——— 1991 Crime in the United States—1990. Washing- Journal of the Institute of Criminal Law and Criminology
ton, D.C.: U.S. Government Printing Office. 22:335–356.

——— 1998 Crime in the United States—1997. Washing- Sheley, Joseph F., and John J. Hanlon 1978 ‘‘Unintend-
ton, D.C.: U.S. Government Printing Office. ed Effects of Police Decisions to Actively Enforce
Laws: Implications for Analysis of Crime Trends.’’
Gove, Walter R., Michael Hughes, and Michael Geerken Contemporary Crises 2:265–275.
1985 ‘‘Are Uniform Crime Reports a Valid Indicator
of the Index Crimes? An Affirmative Answer with Short, James F., and F. Ivan Nye 1957 ‘‘Reported Behav-
Minor Qualifications.’’ Criminology 23:451–491. ior as a Criterion of Deviant Behavior.’’ Social Prob-
lems 5:207–213.
Hindelang, Michael J. 1978 ‘‘Race and Involvement in
Common Law Personal Crimes.’’ American Sociologi- ——— 1958 ‘‘Extent of Unrecorded Juvenile Delin-
cal Review 43:93–109. quency: Tentative Conclusions.’’ Journal of Criminal
Law and Criminology 49:296–302.
——— 1979 ‘‘Sex Differences in Criminal Activity.’’
Social Problems 27:143–156. Skogan, Wesley G. 1976 ‘‘Crime and Crime Rates.’’ In
Wesley G. Skogan, ed., Sample Surveys of the Victims of
———, Travis Hirschi, and Joseph G. Weis 1979 ‘‘Cor- Crime. Cambridge, Mass.: Ballinger.
relates of Delinquency: The Illusion of Discrepancy
Between Self-Report and Official Measures.’’ Ameri- Smith, Douglas A., and Christy A. Visher 1981 ‘‘Street
can Sociological Review 44:995–1014. Level Justice: Situational Determinants of Police Ar-
rest Decisions.’’ Social Problems 29:167–177.
Langan, Patrick A., and David Farrington 1998 Crime
and Justice in the United States and In England and Turner, Anthony G. 1972 The San Jose Methods Test of
Wales, 1981– 96. Washington, D.C.: U.S. Department Known Crime Victims. Washington, D.C.: U.S. Gov-
of Justice. ernment Printing Office. National Criminal Justice
Information and Statistics Service, Law Enforcement
Assistance Administration.

501

CRIME, THEORIES OF

United Nations Crime and Justice Information Network identified by the criminal laws of nations, states,
1998 http://www.ifs.unvie.ac.at/ uncjin/mosaic/ and local jurisdictions. Acts that are not prohibit-
at.inthom/txt. ed or required by the criminal law are not crimes,
however much they may offend some members of
U.S. Department of Justice 1997 Criminal Victimization the community. Also, the reach of the criminal law
in the United States, 1994. Washington, D.C.: U.S. in modern societies is very broad, involving a wide
Government Printing Office. range of behavioral acts that vary not only in form
but in severity as well. The criminal laws of various
Visher, Christy A. 1983 ‘‘Gender, Police, Arrest Deci- states and nations prohibit morally repugnant acts
sions, and Notions of Chivalry.’’ Criminology 21:5–28. such as murder or incest, but they also prohibit
less serious offenses such as vandalism, petty theft,
Wheeler, Stanton 1967 ‘‘Criminal Statistics: A and myriad other acts. Parenthetically, there is
Reformulation of the Problem.’’ Journal of Criminal considerable controversy in modern America, both
Law, Criminology, and Police Science 58:317–324. among criminologists and among members of the
general public, as to whether certain kinds of
Wilson, James Q. 1967 ‘‘The Police and Delinquents in behavior, such as marijuana use, various consensual
Two Cities.’’ In Stanton Wheeler and H. M. Hughes, sex acts between adults, or abortion, ought to be
eds., Controlling Delinquents. New York: John Wiley. expunged from or brought into the criminal codes.

——— 1978 Varieties of Police Behavior: The Management Persons of all ages violate criminal laws, al-
of Law and Order in Eight Communities. Cambridge, though a number of forms of criminality are most
Mass.: Harvard University Press. frequent among persons in their teens or early
twenties. Except for ‘‘status offense’’ violations
ROBERT M. O’BRIEN such as running away, truancy, and the like, which
apply only to juveniles (usually defined as persons
CRIME, THEORIES OF under eighteen years of age), juvenile delinquency
and adult criminality are defined by the same body
Most accounts of the rise of criminological inquiry of criminal statutes. However, criminologists have
indicate that it had its beginnings in mid-nine- often constructed theories about delinquency sepa-
teenth-century developments in Europe, includ- rate from explanations of adult criminality. Al-
ing the work of Cesare Lombroso, an Italian pris- though many theories of delinquency closely re-
on physician, who argued that many criminals are semble those dealing with adult crime, some of the
atavists, that is, biological throwbacks to a human former are not paralleled by theories of adult
type, homo delinquens, that allegedly existed prior criminality. In the discussion to follow, most atten-
to the appearance of homo sapiens. Since the time tion is upon explanatory arguments about adult
of Lombroso and other early figures in criminolo- lawbreaking, but some mention is also made of
gy, the field has grown markedly, both in terms of causal arguments about juvenile crime.
the variety of scholars who have tried to uncover
the causes of crime and also in terms of the diverse CRIMINOLOGICAL QUESTIONS AND
theories that have been produced by these persons CAUSAL THEORIES
(Gibbons 1994). Currently legal theorists, psycholo-
gists, economists, geographers, and representa- Given the broad compass of the criminal law, and
tives of other scholarly fields engage in criminological given the variety of different perspectives from
theorizing and research. There has also been re- which the phenomenon of crime has been ad-
newed interest in sociobiological theorizing and dressed, it is little wonder that there are many
investigation regarding criminality. Even so, the theories of crime. Most of these theories center on
largest share of work has been and continues to be the explanation of crime patterns and crime rates,
carried on by sociologists. Thus, criminology is or what might be termed ‘‘crime in the aggregate,’’
frequently identified as a subfield of sociology or are pitched at the individual level and endeavor
(Gibbons 1979, 1994). to identify factors that account for the involve-
ment of specific individuals in lawbreaking con-
Although a few scholars have argued that duct (Cressey 1951; Gibbons 1992, pp. 35–39)
crime should be defined as consisting of violations
of basic human rights or for some other ‘‘social’’
conception, most criminologists opt for the legal-
istic view that crime and criminal behavior are

502

CRIME, THEORIES OF

These are related but analytically separate ques- weak social controls arising from noneconomic
tions about the causes of crime. As Donald Cressey elements of the social structure, principally the
(1951) argued many years ago, an adequate ac- political system, along with religion, education,
count of criminality should contain two distinct and family patterns. According to Messner and
but consistent aspects: First, a statement that ex- Rosenfeld, this pronounced emphasis on the accu-
plains the statistical distribution of criminal behav- mulation of wealth and weak social restraints pro-
ior in time and space (epidemiology), and second, motes high rates of instrumental criminal activity
a statement that identifies the process or processes such as robbery, burglary, larceny, and auto theft.
by which persons come to engage in criminal
behavior. Crime rates are important social indicators
that reflect the quality of life in different regions,
Statistical distributions of criminal behavior in states, or areas. Additionally, theories that link
time and space are usually presented in the form various social factors to those rates provide consid-
of crime rates of one kind or another. One of the erable insight into the causes of lawbreaking. But,
most familiar of these is the index crime rate report- it is well to keep in mind that crime rates are the
ed annually for cities, states, and other jurisdic- summary expression of illegal acts of individuals.
tions by the Federal Bureau of Investigation. The Much of the time, the precise number of offenders
index crime rate is comprised of the number of who have carried out the reported offenses is
reported cases of murder, non-negligent man- unknown because individual law violators engage
slaughter, forcible rape, aggravated assault, rob- in varying numbers of crimes per year. Even so,
bery, burglary, larceny, auto theft, and arson per crime rates summarize the illegal actions of indi-
jurisdiction, expressed as a rate per 100,000 per- viduals. Accordingly, theories of crime must ulti-
sons in that jurisdiction’s population. mately deal with the processes by which these
specific persons come to exhibit criminal behavior.
Many crime rate patterns are well known,
including relatively high rates of violence in the In practice, criminological theories that focus
United States as compared to other nations, state- on crime rates and patterns often have had rela-
by-state variations in forcible rape rates, regional tively little to say about the causes of individual
variations in homicide and other crimes within the behavior. For example, variations in income ine-
United States, and so forth. However, criminological quality from one place to another have been iden-
scholars continue to be hampered in their efforts tified by criminologists as being related to rates of
to account for variations in crime across various predatory property crime such as burglary, auto-
nations in the world by the lack of detailed data mobile theft, and larceny. Many of the studies that
about lawbreaking in nations and regions other have reported this finding have had little to say
than the United States (although see van Dijk, about how income inequality, defined as the une-
Mayhew, and Killias 1990). qual distribution of income among an entire popu-
lation of an area or locale, affects individuals. In
Criminologists have developed a number of short, explanations of crime rate variations often
theories or explanations for many crime rate varia- have failed to indicate how the explanatory vari-
tions. One case in point is Larry Baron and Murray ables they identify ‘‘get inside the heads of offend-
Straus’s (1987) investigation of rape rates for the ers,’’ so to speak.
fifty American states, in which they hypothesized
that state-to-state variations in gender inequality, Although criminological theories about crime
social disorganization (high divorce rates, low rates and crime patterns have often been devel-
church attendance, and the like), pornography oped independently of theories related to the
readership, and ‘‘cultural spillover’’ (authorized processes by which specific persons come to exhib-
paddling of school children, etc.) are major influ- it criminal conduct, valid theories of these process-
ences on forcible rape. Steven Messner and Rich- es ought to have implications for the task of under-
ard Rosenfeld’s (1994) institutional anomie theory is standing the realities of individual criminal conduct.
another example of theorizing that focuses on For example, if variations in gender inequality and
crime rate variations. They argued that in present- levels of pornography are related to rates of forci-
day America, cultural pressures to accumulate ble rape, it may be that males who carry out sexual
money and other forms of wealth are joined to assaults are also the individuals who most strongly

503

CRIME, THEORIES OF

approve of discrimination against women and who American society is criminogenic because it involves
are avid consumers of pornography. In the same social and economic features that appear to con-
way, if income inequality bears a consistent rela- tribute heavily to criminality. However, this is a
tionship to rates of predatory crime, it may be that general perspective rather than a theory of crime
individual predators express strong feelings of in that it does not identify the full range of factors
‘‘relative deprivation,’’ that is, perceptions that that contribute to lawbreaking, and it also lacks a
they are economically disadvantaged and distressed set of explicit and interrelated propositions. By
about their situation. However, some additional contrast, the income inequality argument more
factors may also have to be identified that deter- clearly qualifies as a causal theory, as does the
mine which of the persons who oppose women’s formulation that links gender inequality, pornog-
rights or who feel relatively deprived become in- raphy readership, and certain other influences to
volved in illegal conduct and which do not. forcible rape.

PERSPECTIVES, THEORIES, AND A few other comments are in order on theo-
HYPOTHESES retical perspectives in criminology. During most
of the developmental history of criminology in the
A number of arguments about crime patterns and United States, from the early 1900s to the present,
the processes through which individuals get in- sociological criminologists voiced support for the
volved in lawbreaking are examined below. Before criminogenic culture thesis that directs attention
moving to these specific theories, however, two to social-structural factors thought to be responsi-
other general observations are in order. First, in ble for criminality. Thus, this view might also be
criminology, as in sociology more generally, there referred to as ‘‘mainstream criminology.’’ Most
is considerable disagreement regarding the nature criminologists have linked lawbreaking to major
of perspectives, theories, and hypotheses (as well ‘‘rents and tears’’ in societal structure at the same
as paradigms, frameworks, and other theoretical time that most of them have assumed that these
constructions). Even so, perspectives are often iden- crime-producing features can be remedied or less-
tified as broad and relatively unsystematic argu- ened through social and economic reforms of one
ments; while theories are often described as sets of kind or another (Gibbons 1992, 1994; Currie 1985).
concepts, along with interconnected propositions
that link the concepts together into an ‘‘explanato- In the 1970s, a markedly different perspective
ry package’’; and hypotheses are specific research competed for attention. Often referred to as ‘‘radi-
propositions derived from theories. In practice, cal-Marxist’’ or ‘‘critical’’ criminology, it asserted
however, many causal explanations that have been that the causes of crime arise out of societal charac-
described as theories have been incomplete and teristics that are inherent in corporate capitalism
also conceptually imprecise. Jack Gibbs (1985) has (Gibbons 1992, pp.122–130; Chambliss 1975;
labeled such ‘‘theories’’ as being in ‘‘the discursive Quinney 1974, 1977). According to radical-Marx-
mode’’ rather than as formal theories. Discursive ist criminologists, criminal laws serve the interests
arguments are stated in everyday language and of the capitalist ruling class. In turn, the system of
their underlying logic is often difficult to identify. corporate capitalism over which the ruling class
According to Gibbs, because many criminological presides depends for its survival on the exploita-
theories are discursive, precise predictions cannot tion of the resources and people of other countries
be deduced from them, nor is it possible to subject and the economic oppression of citizens within
predictions to empirical test, that is, to validation capitalist nations. These conditions create eco-
through research. nomic strains for many persons, contribute to the
deterioration of family life, and drive many indi-
Many criminological theories involve relative- viduals into desperate acts of lawbreaking.
ly vague concepts, faulty underlying logic, and
other problems. At the same time, it is possible to The radical-Marxist perspective received con-
identify a number of general theoretical perspec- siderable attention in the 1970s. Those who criti-
tives in criminology and to differentiate these cized it claimed that it presented a one-dimension-
from relatively formalized and precise theories. al, oversimplified account of the social sources of
For example, many criminologists contend that criminality. For example, while some criminal laws
favor the interests of the owners of capital, many

504

CRIME, THEORIES OF

others serve broader social interests. Similarly, characterized by low self-control. Accordingly, in
while some forms of crime may be related to their view, there is no need for schemes that
economic problems, others are not. classify types of crime or kinds of offenders or for
separate theories to account for them.
A number of other alternative perspectives
began to appear in criminology in the 1980s and However, many criminologists contend that
1990s, so that theorizing about crime and crimi- there are relatively distinct forms of crime that
nality has become even more diversified. These differ from each other and also that the behavior
‘‘new criminologies’’ (Gibbons 1994, pp. 151–175) of many criminals is relatively patterned. For ex-
include postmodernist viewpoints, feminist argu- ample, some offenders concentrate their efforts
ments, and a number of other strains of thought, upon larcenous acts while others of them are
all of which differ in a number of ways from mainly involved in acts of violence.
‘‘mainstream’’ criminology.
A number of criminologists have tried to sort
Although broad theorizing has continued to the diverse collection of illegal activities into a
proliferate in criminology, another major trend in smaller number of sociologically meaningful group-
recent years has taken criminology in a different ings or crime forms (Farr and Gibbons 1990;
direction, toward relatively detailed theories spe- Gibbons 1994). Some have singled out crude prop-
cific to one or another form of crime and toward erty crime, consisting of larceny, burglary, rob-
research investigations of those theories. Baron bery, and kindred offenses, as one type of crime;
and Straus’s (1987) formulation that links gender others have placed homicide and assaultive acts
inequality, pornography, and specific flaws in the into another crime type; while still others have
social control system is a case in point, as is Ken- treated forcible rape and other sexual offenses as
neth Polk’s (1994) theorizing and research regard- yet another broad form of lawbreaking. Then, too,
ing the various ‘‘scenarios’’ of social interaction ‘‘white-collar’’ or organizational crime has often
that culminate in lethal violence. Indeed, contem- been singled out as a crime pattern (Sutherland
porary criminology has a rich accumulation of 1949; Schrager and Short 1978; Coleman 1987),
empirical evidence that can be drawn upon by consisting in large part of criminal acts such as
those who seek to understand the nature and antitrust violations, financial fraud, and the like,
causes of criminality in modern societies. carried on by corporations and other large organi-
zations. ‘‘Organized crime’’ is still another type
FORMS OF CRIME AND TYPES OF that has received a good deal of criminological
OFFENDERS attention. Some persons have also pointed to a
collection of offenses that receive little visibility in
The legal codes of the various states and of the the mass media and elsewhere and have termed
federal government include hundreds of specific these ‘‘folk crimes’’ (Ross 1960–1961, 1973) or
offenses, but the explanatory task is to develop a ‘‘mundane crimes’’ (Gibbons 1983). Finally, ‘‘po-
relatively small set of theories that make sense of litical crime’’ has been identified as a major pat-
this diverse collection of illegal activities. tern of lawbreaking (Turk 1982).

In their response to this task, Michael Gottfredson Although these groupings identify forms of
and Travis Hirschi (1990) have argued that virtual- lawbreaking that may differ from each other in
ly all forms of criminal activity, and many kinds of important ways, it is also true that they are relative-
deviant behavior as well, share certain features in ly crude in form in that the underlying dimensions
common: they are spontaneous, unplanned ac- or variables on which they are based have not been
tions requiring little or no skill for their commis- spelled out. Further, there is disagreement among
sion. Further, Gottfredson and Hirschi have claimed criminologists as to the specific crimes that should
that lawbreakers rarely specialize in specific acts of be identified as instances of white-collar crime,
criminality. They concluded that virtually all of mundane crime, or some other category.
these varying criminal and deviant acts can be
accounted for by a single, general theory that Criminologists have also developed systems
asserts they are the work of persons who are for sorting individual offenders into behavioral
types (Gibbons 1965). Although related to crime

505

CRIME, THEORIES OF

classification efforts, categorization of lawbreak- (Braithwaite 1979; Carroll and Jackson 1983). Fur-
ers into types is a separate activity. While it may be ther, Leo Carroll and Pamela Jackson (1983) argue
possible to identify groupings such as predatory that the routine activities and income inequality
property crime, it many not be true that individual arguments are interrelated. They suggest that the
offenders specialize in that form of crime, hence it labor market trends identified in the former have
may be incorrect to speak of ‘‘predatory offend- led to increased crime opportunities, declines in
ers’’ as a type of criminal. Most offender classifica- guardianship, and heightened levels of income
tion systems have been deficient in one respect or inequality.
another (Gibbons 1985), but the most serious flaw
is that they are oversimplified. Researchers have THEORIES OF CRIMINAL BEHAVIOR
discovered that many offenders engage in a fairly
diverse collection of offenses over their criminal While theories about crime patterns and rates
‘‘careers’’ rather than being crime specialists such have been developed principally by sociological
as ‘‘burglars,’’ ‘‘robbers,’’ or ‘‘drug dealers’’ (Chaiken criminologists, representatives of a number of
and Chaiken 1982). disciplines have endeavored to identify factors
and processes that explain the involvement or
THEORIES OF CRIME noninvolvement of specific individuals in lawbreaking.
Three basic approaches can be noted: the biogenic-
The number of theories regarding particular forms sociobiogenic, psychogenic, and sociogenic orien-
of crime is extensive, thus they cannot all be tations. Biogenic-sociobiogenic views attribute the gene-
reviewed here (for a review of many of them, see sis or causes of lawbreaking, entirely or in part, to
Gibbons 1994). Additional to those theories men- constitutional and hereditary factors, while psycho-
tioned previously, a sampling of the more impor- genic perspectives often contend that lawbreakers
tant ones would include the routine activities expla- exhibit personality problems to which their illegal
nation of predatory property crime. Lawrence conduct is a response. By contrast, sociologists
Cohen and Marcus Felson (1979) contend that have most often advanced sociological theories, argu-
predatory property crime involves three major ing that criminal behavior is learned in a socializa-
elements: the supply of motivated offenders, the tion process by individuals who are neither bio-
supply of suitable targets, and the absence of logically nor psychologically flawed. Also, some
capable guardians. In other words, these crimes persons have constructed theories that combine
are carried out by persons with criminal motives, or integrate elements of these three approach-
but the incidence of such offenses also depends es, one case being James Wilson and Richard
upon the number of opportunities to burglarize Herrnstein’s (1985) argument that the behavior of
homes or to rob persons. Also, the number of criminals has genetic and constitutional roots and
burglaries from one community to another is in- that offenders tend to be more mesomorphic in
fluenced by the degree to which residents in local body build, less intelligent, and more burdened
areas act as guardians by maintaining surveillance with personality defects than their noncriminal
over homes in their neighborhoods or by taking peers. Wilson and Herrnstein also contend that
other crime-control steps. This theory takes note various social factors such as unemployment, com-
of the fact that criminal opportunities have in- munity influences, and the like play some part in
creased in the United States in recent decades at criminality.
the same time that capable guardianship has de-
clined, due principally to changes in employment Three generalizations can be made about bio-
patterns. In particular, the number of families in logical theories: First, conclusive evidence sup-
which both adult members work during the day porting these arguments has not yet been pro-
has grown markedly, as has the number of em- duced; second, biological factors cannot be ruled
ployed, single-parent families. Research evidence out on the basis of the empirical evidence current-
lends considerable support to this theory (Cohen ly on hand; and third, if biological factors are
and Felson 1979). involved in criminality, they are probably inter-
twined with social and psychological influences
Research evidence also indicates that income (Trasler 1987; Fishbein 1990).
inequality is related to predatory property crime

506

CRIME, THEORIES OF

In the first half of the twentieth century, psy- can be acquired indirectly from reference groups,
chological arguments about criminals centered on that is, from persons who are important to indi-
claims that these persons were feebleminded, or viduals but with whom they do not directly associ-
somewhat later, that many of them were suffering ate. Sutherland also contended that associations
from serious mental pathology of one sort or vary in frequency, duration, priority, and intensity
another. However, a number of reviews of the (the personal meaning or significance to individu-
evidence, particularly that having to do with the als of particular social ties).
alleged role of low intelligence or personality de-
fects in criminality, turned up little or no support A very different theory, directed mainly at the
for such claims (Schuessler and Cressey 1950; explanation of juvenile delinquency, is that if,
Waldo and Dinitz 1967; Tennenbaum 1977). through faulty socialization, individuals fail to be-
come bonded or connected to others (that is, if
Even so, there is a lingering suspicion among a they do not develop positive attachments to adult
number of criminologists that the criminal acts of persons such as parents or teachers), they will then
at least some lawbreakers, including certain kinds be unlikely to refrain from misbehavior (Hirschi
of sexual offenders, can be attributed to faulty 1969). The emphasis in this argument is on the
socialization and abberant personality patterns failure to acquire prosocial, nondelinquent senti-
(Gibbons 1994). Additionally, some psychologists ments rather than on the learning of antisocial
have argued that even though the broad theory ones. In this view, delinquency is the result of
that criminality is due to marked personality de- defective socialization rather than of socialization
fects on the part of lawbreakers lacks support, it is patterns through which criminal attitudes are
nonetheless true that individual differences in the learned. A more recent but related version of this
form of personality patterns must be incorporated argument, noted earlier in this essay, is that of
into criminological theories (Andrews and Wormith Gottfredson and Hirschi (1990), who have claimed
1989; Blackburn 1993; Andrews and Bonta 1998). that criminality and other forms of deviance are
Moreover, in the opinion of a number of sociologi- most often engaged in by persons who are low on
cal criminologists, the argument that individual self-control.
differences make a difference, both in accounting
for criminality and for conformity, is persuasive THEORETICAL INTEGRATION
(Gibbons 1989, 1994). Personality dynamics play a
part in the behavior patterns that individuals ex- Clearly, there is a wealth of differing arguments
hibit, thus such concepts as role and status are about the causes of crime and individual lawbreaking
often not entirely adequate to account for the now in existence. Not surprisingly, then, a number
behavior of individuals. Lawbreaking is quite prob- of scholars have begun to ask whether it might be
ably related to the psychic needs of individuals as possible to amalgamate some or all of these varied
well as social and economic influences that play lines of explanation into an integrated theory and
upon them. On this point, Jack Katz (1988) has thereby to develop a more powerful causal argu-
explored the personal meanings of homicidal acts, ment. Some criminologists have suggested that
shoplifting, and a number of other kinds of crimi- biological, psychological, and sociological conten-
nality to the persons who have engaged in these acts. tions about crime all have some part to play in
explaining crime and that, therefore, they should
Sutherland’s theory of differential association be integrated (Barak 1998). Others have proposed
(Sutherland, Cressey, and Luckenbill 1992, pp.88– more limited forms of integration in which, for
90) has been one of the most influential sociologi- example, several sociological arguments might be
cal theories about the processes through which merged into a single formulation (e.g., Tittle 1995;
persons come to engage in criminality. Sutherland Braithwaite 1989) or in which psychological claims
maintained that criminal behavior, including tech- about lawbreaking might be linked or integrated
niques of committing crime and conduct defini- with sociological ones. But to date, criminological
tions favorable to lawbreaking activity, is learned investigators have not moved very far in the direc-
in association with other persons. Many of the tion of sophisticated theoretical integrations. Fur-
associations of persons involve face-to-face con- ther research on the interconnections between
tact, but conduct definitions favoring criminality biological, psychological, and social factors in crime

507

CRIME, THEORIES OF

and criminal conduct will probably be required if ——— 1979 The Criminological Enterprise. Englewood
integrative efforts are to bear fruit. Cliffs, N.J.: Prentice-Hall.

(SEE ALSO: Criminology; Juvenile Delinquency Theories; So- ——— 1983 ‘‘Mundane Crime.’’ Crime and Delinquency
cial Control) 29:213–227.

REFERENCES ——— 1985 ‘‘The Assumption of the Efficacy of Middle-
Range Explanations: Typologies.’’ In R.F. Meier, ed.,
Andrews, D.A., and James Bonta 1998 The Psychology of Theoretical Methods in Criminology .Beverly Hills,
Criminal Conduct, 2d ed. Cincinnati: Anderson. Calif.: Sage.

———, and J. Stephen Wormith 1989 ‘‘Personality and ——— 1989 ‘‘Comment-Personality and Crime: Non-
Crime: Knowledge Destruction and Construction.’’ Issues, Real Issues, and a Theory and Research Agen-
Justice Quarterly 6:289–309. da.’’ Justice Quarterly 6:311–323.

Barak, Gregg 1998 Integrating Criminologies. Boston: ——— 1992 Society, Crime, and Criminal Behavior, 6th ed.
Allyn and Bacon. Englewood Cliffs, N.J.: Prentice-Hall.

Baron, Larry, and Murray A. Straus 1987 ‘‘Four Theo- ——— 1994 Talking About Crime and Criminals. Englewood
ries of Rape: A Macrosociological Analysis.’’ Social Cliffs, N.J.: Prentice-Hall.
Problems 34:467–489.
Gibbs, Jack P. 1985 ‘‘The Methodology of Theory Con-
Blackburn, Ronald 1993 The Psychology of Criminal Con- struction in Criminology,’’ In R.F. Meier, ed., Theo-
duct. New York: Wiley. retical Methods in Criminology. Beverly Hills, Calif.: Sage.

Braithwaite, John 1979 Inequality, Crime and Public Poli- Gottfredson, Michael R., and Travis Hirschi 1990 A
cy. London: Routledge and Kegan Paul. General Theory of Crime. Stanford, Calif.: Stanford
University Press.
——— 1989 Crime, Shame, and Reintegration. Cambridge,
Eng.: Cambridge University Press. Hirschi, Travis 1969 Causes of Delinquency. Berkeley:
University of California Press.
Carroll, Leo, and Pamela Irving Jackson 1983 ‘‘Inequali-
ty, Opportunity, and Crime Rates in Central Cities.’’ Katz, Jack 1988 Seductions of Crime. New York: Basic Books.
Criminology 21:178–194.
Messner, Steven F., and Richard Rosenfeld 1994 Crime
Chaiken, Jan, and Marcia Chaiken 1982 Varieties of and the American Dream. Belmont, Calif.: Wadsworth.
Criminal Behavior. Santa Monica, Calif.: Rand.
Polk, Kenneth 1994 When Men Kill. Cambridge, Eng.:
Chambliss, William 1975 ‘‘Toward a Political Economy Cambridge University Press.
of Crime.’’ Theory and Society 2:148–155.
Quinney, Richard 1974 Critique of Legal Order. Boston:
Cohen, Lawrence E., and Marcus Felson 1979 ‘‘Social Little, Brown.
Change and Crime Rate Trends: A Routine Activities
Approach.’’ American Sociological Review 44:588–607. ——— 1977 Class, State, and Crime. New York: McKay.

Coleman, James W. 1987 ‘‘Toward an Integrated Theo- Ross, H. Laurence 1960-61 ‘‘Traffic Law Violation: A
ry of White-Collar Crime.’’American Journal of Sociolo- Folk Crime.’’ Social Problems 9:231–241.
gy 93:406–439.
——— 1973 ‘‘Folk Crime Revisited.’’ Criminology 11:41–85.
Cressey, Donald R. 1951 ‘‘Epidemiology and Individual
Conduct: A Case From Criminology.’’ Pacific Socio- Schrager, Laura Shill, and James F. Short, Jr. 1978
logical Review 3:47–58. ‘‘Toward a Sociology of Organizational Crime.’’ So-
cial Problems 25:407–419.
Currie, Elliott 1985 Confronting Crime. New York:
Pantheon. Schuessler, Karl F., and Donald R. Cressey 1950 ‘‘Per-
sonality Characteristicsof Criminals.’’ American Jour-
Farr, Kathryn Ann, and Don C. Gibbons 1990 ‘‘Observa- nal of Sociology 55:476–484.
tions on the Development of Crime Categories.’’
International Journal of Offender Therapy and Compara- Sutherland, Edwin H. 1949 White Collar Crime. New
tive Criminology 34:223–237. York: Dryden.

Fishbein, Diana H. 1990 ‘‘Biological Perspectives in ———, Donald R. Cressey, and David F. Luckenbill
Criminology.’’ Criminology 28:27–72. 1992 Principles of Criminology, 11th ed. Dix Hills,
N.Y.: General Hall.
Gibbons, Don C. 1965 Changing the Lawbreaker. Englewood
Cliffs, N.J.: Prentice-Hall. Tennenbaum, D. J. 1977 ‘‘Personality and Criminality:
A Summary and Implications of the Literature.’’
Journal of Criminal Justice 5:225–235.

508

CRIMINAL AND DELINQUENT SUBCULTURES

Tittle, Charles R. 1995 Control Balance. Boulder, Colo.: the safe and efficient performance of the crimes in
Westview. which they specialize, and generally avoid other
types of criminal involvement that might bring
Trasler, Gordon 1987 ‘‘Biogenetic Factors.’’ In Herbert them to the attention of the authorities (see Suth-
C. Quay, ed., Handbook of Juvenile Delinquency. New erland 1937; Cressey 1983). Not all criminal sub-
York: Wiley. cultures are this specific, however. Some are sim-
ply opportunistic, embracing several types of
Turk, Austin T. 1982 Political Criminality. Beverly Hills, criminal behavior as opportunities arise. So it is
Calif.: Sage. with delinquent subcultures, where specializa-
tion is rare.
van Dijk, Jan J., Pat Mayhew, and Martin Killias 1990
Experiences of Crime Across the World. Deventer, The While delinquent subcultures typically are as-
Netherlands: Kluwer Law and Taxation Publishers. sociated with a broad range of illegal behaviors,
among delinquent groups and subcultures there is
DON C. GIBBONS great variation in the nature and strength of group
norms, values, and interests. Moreover, the extent
CRIMINAL AND DELINQUENT to which delinquent behavior is attributable to
SUBCULTURES these factors is problematic. Much delinquent be-
havior of highly delinquent gangs, for example,
A subculture is derivative of, but different from, results from the operation of group processes
some larger referential culture. The term is used rather than group norms per se (see Short 1997).
loosely to denote shared systems of norms, values, The normative properties of groups vary greatly,
or interests that set apart some individuals, groups, but even the most delinquent gang devotes rela-
or other aggregation of people from larger socie- tively little of its group life to the pursuit of delin-
ties and from broader cultural systems. Common quent behaviors. Further, when gangs do partici-
examples include youth subcultures, ethnic sub- pate in delinquent episodes, some members of the
cultures, regional subcultures, subcultures associ- gang typically do not become involved. This is so,
ated with particular occupations, and subcultures in part, because subcultures typically consist of
that develop among people who share special collections of normative orders—rules and practices
interests such as bird-watching, stamp collecting, related to a common value (Herbert 1998)—rath-
or a criminal or delinquent behavior pattern. er than norms oriented around a single value
(such as being ‘‘macho,’’ ‘‘cool,’’ or exceptionally
Neither membership in a particular category gifted in some way). In addition, individuals who
(age, ethnicity, place of residence, occupation) nor are associated with a particular subculture tend
behavior (bird-watching, stamp collecting, crime, also to be associated with other subcultures. Sim-
or delinquency) is sufficient to define a subcul- ply being associated with a subculture thus is
ture, however. The critical elements are, rather, unlikely to be a good predictor of the behavior of a
(1) the degree to which values, norms, and identi- particular individual.
ties associated with membership in a category or
types of behaviors are shared, and (2) the nature of For analytical purposes it is important to dis-
relationships, within some larger cultural system, tinguish between subcultures and the particular
between those who share these elements and those individuals and groups who share the norms, val-
who do not. ues, and interests of the subculture. While mem-
bers of a delinquent gang may be the sole carriers
In these terms, criminal or delinquent subcul- of a particular subculture in a particular location,
tures denote systems of norms, values, or interests some subcultures are shared by many gangs. Con-
that support criminal or delinquent behavior. The flict subcultures, for example, are shared by rival
many behaviors specified in law as criminal or fighting gangs among whom individual and group
delinquent are associated with many criminal and status involves values related to the defense of
delinquent subcultures. The norms, values, or in- ‘‘turf’’ (territory) and ‘‘rep’’ (reputation) and norms
terests of these subcultures may support particular supportive of these values. Subcultures oriented to
criminal acts, a limited set of such acts (e.g., a theft and other forms of property crime vary in the
subculture of pickpockets vs. a subculture of extent to which they are associated with particular
hustlers). ‘‘Professional criminals,’’ for example,
take pride in their craft, organize themselves for

509

CRIMINAL AND DELINQUENT SUBCULTURES

groups. Some types of property crimes require in . . . interaction out of materials supplied from
organization and coordination of activities in or- two sources: the local area in which they spend
der to be successful. Some also necessarily involve their time almost totally unsupervised and undi-
the efforts of others, such as ‘‘fences,’’ in addition rected by adults, and the consumerist youth cul-
to members of a criminally organized gang (see ture promoted in the mass media’’ (1989, p. 249).
Klockars 1974). Others, such as mugging and oth- In other words, crime becomes meaningful to
er types of robbery, may be carried out by indi- young men when they interact with one another
vidual offenders, who nevertheless share a subcul- and when they participate in youth culture, with its
ture supportive of such behavior. Most drug-using highly commercialized messages. The research lit-
subcultures tend to be less oriented toward par- erature on criminal and delinquent subcultures is
ticular groups than are conflict subcultures be- devoted largely to describing and accounting for
cause the subcultural orientation is toward drug these types of varied and complex relationships.
consumption, and this orientation can be shared
with other drug users in many types of group THEORY AND RESEARCH
situations. To the extent that a subculture is orient-
ed to experiences associated with a particular group, Despite efforts to define the theoretical construct,
however, a drug-using subculture may also be ‘‘subculture’’—and related constructs—more pre-
unique to that group. cisely and to describe and account for the empiri-
cal reality they represent, no general theory of
As this analysis suggests, cultures, subcultures, subcultures has emerged (Yinger 1960, 1977). In-
and the groups associated with them typically stead, research has continued to reveal enormous
overlap, often in multiple and complex ways. To variation in subcultures, and theory has proceed-
speak of youth culture, for example, is to denote a ed by illustration and analogy, with little progress
subculture of the larger adult-dominated and in measurement or formal theoretical develop-
institutionally defined culture. Similarly, delinquent ment. Despite this scientifically primitive situa-
subcultures contain elements of both youth and tion, principles of subcultural formation have been
adult cultures. Terry Williams’s (1989) lower class, identified, and knowledge of it has advanced.
minority, ‘‘cocaine kids,’’ for example, were
entrepreneurial, worked long hours, and main- It is a ‘‘fundamental law of sociology and
tained self-discipline—all important elements in anthropology,’’ noted Daniel Glaser, that ‘‘social
the achievement ideology of the American Dream separation produces cultural differentiation’’ (1971,
(see Messner and Rosenfeld 1994; also Fagan 1996; p. 90). More formally, and more cautiously, social
Hagan, et al. 1998). Most saw their involvement in separation is a necessary but not sufficient condi-
the drug trade as a way to get started in legitimate tion for the formation of subcultures. To the
business or to pursue other conventional goals, extent that groups or categories of persons are
and a few succeeded at least temporarily in doing socially separated from one another, subcultural
so. The criminal subculture with which they identi- formation is likely to occur.
fied shared a symbiotic relationship with their
customers (including many middle- and upper- Albert Cohen argued that a ‘‘crucial’’ (perhaps
class persons), who shared subcultural values ap- necessary) ‘‘condition for the emergence of new
proving drug use but who participated in the cultural forms is the existence, in effective interac-
subculture of drug distribution only as consumers. tion with one another, of a number of actors with
For the young drug dealers, selling drugs was a way similar problems of adjustment’’ (1955, p. 59).
to ‘‘be somebody,’’ to get ahead in life, and to While the notion of ‘‘similar problems of adjust-
acquire such things as jewelry, clothing, and cars— ment’’ can be interpreted to include problems
the symbols of wealth, power, and respect. faced by quite conventional people with special
interests who find themselves ‘‘in the same boat’’
The nature of relationships between delin- with others who have these same interests (let us
quent subcultures and larger cultural systems is say, bird-watchers), this condition seems especially
further illustrated by Mercer Sullivan’s study of appropriate to subcultures that embrace vandal-
cliques of young men in Brooklyn, among whom ism, ‘‘hell raising,’’ and other types of nonutilitarian
the ‘‘cultural meaning of crime’’ was ‘‘constructed

510

CRIMINAL AND DELINQUENT SUBCULTURES

delinquent behavior. Observing that this type of ‘‘effective interaction.’’ The result often is the
behavior occurs most frequently among working- formation of delinquent youth gangs, an increas-
class boys, Cohen hypothesized that this type of ingly common organizational form taken by delin-
delinquent subculture was formed in reaction to quent subcultures (see Thrasher 1927; Klein, 1995;
status problems experienced by working-class boys Short 1997).
in middle-class institutions such as schools. Many
working-class boys are inadequately prepared for There is no universally agreed-upon defini-
either the educational demands or the discipline tion of youth gangs. For theoretical purposes,
of formal education, and they are evaluated poorly however, it is useful to define gangs as groups
in terms of this ‘‘middle-class measuring rod.’’ whose members meet together with some regulari-
Working-class girls are less pressured in these ty over time and whose membership is group-
terms, Cohen argued, because they are judged selected, based on group-defined criteria. Similar-
according to criteria associated with traditional ly, organizational characteristics are group deter-
female roles, and they are subject to closer con- mined. Most importantly, gangs are not adult-
trols in the family. sponsored groups. The nature of relationships
between young people and conventional adults is
The solution to their status problems, as some the most critical difference between gangs and
working-class boys see it, according to Cohen’s other youth groups (see Schwartz 1987). Gang
theory, is to reject the performance and status members are less closely tied to conventional insti-
criteria of middle-class institutions, in effect turn- tutions and therefore less constrained by institu-
ing middle-class values upside down. The theory tional controls than are nongang youth. Group
thus seeks to account for the highly expressive and processes of status achievement, allocation, and
hedonistic quality of much delinquency and for defense are more likely to result in delinquent
the malicious and negativistic quality of vandalism. behavior among gangs than is the case among
adult-sponsored groups.
Cohen did not attempt to account for the
delinquent behavior of particular individuals or HOW DO CRIMINAL AND DELINQUENT
for the behavior of all working-class boys. Most of SUBCULTURES GET STARTED?
the latter do not become delinquent—at least not
seriously so. They choose instead—or are chan- Delinquent and criminal subcultures have a long
neled into—alternative adaptations such as the history in industrialized societies (Cressey 1983).
essentially nondelinquent ‘‘corner boys’’ or the Herman and Julia Schwendinger (1985) trace the
high-achieving ‘‘college boys’’ described by Wil- origins of adolescent subcultures, including delin-
liam Foote Whyte (1943). quent varieties, to social changes that began in the
sixteenth century. Traditional economic and so-
The forces propelling youngsters into alterna- cial relationships were greatly altered with the
tive adaptations such as these are not completely advent of capitalism and the Industrial Revolution
understood. Clearly, however, working-class and in Western Europe, leaving in their wake large
lower-class boys and girls tend to be devalued in numbers of unemployed persons and disrupting
middle-class institutional contexts. Their margin- communities, families, and other primordial groups.
ality sets the stage for subcultural adaptations. Cut adrift from traditional crafts and communi-
Delinquents and criminals occupy even more mar- ties, thousands roamed the countryside, subsisting
ginal positions. This is particularly true of persist- as best they could off the land or by victimizing
ent delinquents and criminals who commit serious travelers. The ‘‘dangerous classes’’ eventually set-
crimes, in contrast to those who only rarely trans- tled in cities, again to survive by whatever means
gress the law and with little consequence. When were available, including crime. Criminal subcul-
marginality is reinforced by labeling, stigmatization, tures and organizational networks often devel-
or prejudicial treatment in schools and job mar- oped under these circumstances.
kets, ‘‘problems of adjustment’’ magnify. The com-
mon ecological location of many delinquents, in The Schwendingers emphasize that criminal
the inner-city slums of large cities, and their com- subcultures developed as a result of structural
ing together in schools, provides the setting for

511

CRIMINAL AND DELINQUENT SUBCULTURES

changes associated with capitalist values and their Competition among Triad societies in these activi-
accompanying norms and interests—individual- ties often led to violence. Failure to achieve politi-
ism and competitiveness, acquisitiveness and cal power led to their further transformation into
exploitativeness—and the relationships that devel- criminal organizations involved in extortion, rob-
oped during this period between capitalists and bery, drug trafficking, and other serious crimes.
emerging nation-states. While many of the facts
upon which this Marxist interpretation is based Street gangs comprised of Chinese adoles-
are generally accepted, careful historical analysis cents did not form in the United States until the
of economic and political systems and their conse- late 1950s, but their numbers increased dramati-
quences cautions against any simple or straightfor- cally during the following decade, when changed
ward interpretation (see Chirot 1985). The con- immigration laws permitted more Chinese to en-
nection between global phenomena and crime ter the country. Conflict between foreign- and
and delinquency always is mediated by historical, American-born youths led to the emergence of
cultural, and local circumstances—by the histori- gangs, some seriously delinquent. Chin attributes
cally concrete (see Tilly 1981). this development to alienating problems experi-
enced by immigrant Chinese youth in their fami-
James Coleman and his associates (1974) iden- lies, schools, and communities, in dramatic con-
tified more recent social changes that were associ- trast to their American-born counterparts. From
ated with the rise and spread of youth culture the beginning, many Chinese youth gangs have
throughout the United States: the Baby Boom been associated in a variety of ways with estab-
following World War II and the increased afflu- lished adult secret societies in the United States,
ence of young people associated with post-World Hong Kong, or Taiwan, or in all three places. The
War II economic prosperity combined to create a existence of ‘‘Triad-influenced’’ organizations has
huge youth market with great economic power. At been critical to the types of gangs that have emerged
the same time, young people were spending more in Chinese communities and to the nature of their
time in school and therefore delaying their en- criminal activities.
trance into the labor force; growing numbers of
women entered the work force, further separating While the origins of delinquent subcultures
mothers from youth in homes and neighborhoods; may reside in antiquity, the formation and evolu-
adults increasingly were employed in large organi- tion of modern variations of them can be ex-
zations where young people were not present; and plained in terms of more immediate macro-level
mass media, catering more and more to the youth developments. Some of these developments relate
market, were greatly expanded. At the close of the primarily to the ongoing activities and interests of
twentieth century, each of these broad social gang members rather than to racial or ethnic
changes was more pronounced—and their influ- changes, or to sweeping social changes. The na-
ence was more widespread throughout the world— ture of these influences is illustrated by a drug-
than was the case when these observations were made. using group studied by James Short, Fred Strodtbeck,
and their associates (Short and Strodtbeck 1965;
In contrast to accounts of the origins of West- see also Short 1997, 1998). This gang was observed
ern European youth cultures, and of youth culture as it developed its own unique subculture. The
in the United States, Ko-lin Chin (1996) traces the subculture of the ‘‘Pill Poppers,’’ as they became
development of Chinese youth gangs in the Unit- known to the research team, evolved from their
ed States to ancient secret society traditions, and relationship with a larger, conflict-oriented gang
to the more recent Triad societies that formed in of which they had previously been a part. The Pill
the late seventeenth century in China, and their Poppers’ preoccupation with drugs and their re-
counterpart tongs in the United States. Formed as fusal to participate in the more bellicose activities
political groups representing disfavored Chinese of the larger gang led to their withdrawal and
officials and the alienated poor, these groups ini- increasing isolation, by mutual agreement. The
tially stressed patriotism, righteousness, and broth- researchers were able to observe the evolution of
erhood as primary values. However, their secret this subculture, which was characterized by nor-
nature was conducive to clandestine activities such mative approval of drug consumption, an elevated
as gambling, prostitution, and running opium dens. value on ‘‘getting high,’’ and mutual interest in the

512

CRIMINAL AND DELINQUENT SUBCULTURES

‘‘crazy’’ things that happened to them when they adulthood. In the past, gang members typically
were under the influence of drugs. The latter, in ‘‘grew out of’’ the gang to take jobs, get married,
particular, became legendary within the group, and often become associated with adult social
being told and retold with nostalgia and humor clubs in stable, ethnically-based communities. These
when members of the gang were together. The options have become less viable among the poor
subculture of this gang contrasted sharply with of all races, but minorities have increasingly be-
that of other gangs that were participating in a come the truly disadvantaged. Gang organization
well-developed conflict subculture. has been affected by this change, as older mem-
bers assume or continue leadership roles. The
LEVELS OF EXPLANATION OF CRIMINAL result often has been that gang involvement in
AND DELINQUENT SUBCULTURES criminal activities has become more sophisticated
and instrumental, and younger members have
The theories of criminal and delinquent subcul- been exploited in criminal enterprise. Relation-
tures are macro-level theories (Short 1998). Their ships between young people and conventional
purpose is to identify what it is about political, adults also suffer, as older, stable role models and
economic, and other social systems that explain monitors of youthful behavior are replaced by
the emergence and the social distribution of these young adult, often criminal, role models for the
phenomena. Other theories at this level focus on young (see Anderson 1990, 1999).
the impact of local and broader community oppor-
tunities on delinquent subcultures and on youth Sullivan’s study of groups and young males in
subcultures generally. Walter Miller (1958) related three Brooklyn communities—black, predominant-
lower-class culture to gang delinquency, while Rich- ly Latino, and white—is particularly significant in
ard Cloward and Lloyd Ohlin (1960) found that this regard. The young men in Hamilton Park, the
different delinquent subcultures were associated white group, were able to find better jobs than
with the availability of legitimate and illegitimate were the others at all ages. More important, be-
economic opportunities in local communities. Gary cause ‘‘they had become more familiar with the
Schwartz (1987) stressed the importance of local discipline of the workplace,’’ as they grew older
community youth-adult authority relationships in they were able to secure better-quality jobs and to
determining the nature of youth subcultures, in- hold on to them, compared to the minority youth
cluding the extent and the nature of delinquent studied by Sullivan. Familiarity with the discipline
activities associated with them. Mercer Sullivan of the workplace is a type of human capital that was
(1989) related gang adaptations to more global made possible by an important type of social capi-
economic developments such as the transfer of tal—the superior personal networks that the Ham-
manufacturing jobs from the United States to ilton Park youth shared with the adult community
other countries and an increasingly segmented (Sullivan 1989, pp. 105, 226). The minority youth
labor market, which has resulted in the concen- were disadvantaged, with respect to both human
tration of low-wage and surplus labor in inner- and social capital, in the family and in other ways
city minority communities (see also Hagedorn (see Coleman 1988). Thus, while individual hu-
1987, 1998). man and social capital are acquired through per-
sonal experience, communities and neighborhoods
William Julius Wilson (1987) provided the also vary in their stock of human and social capital,
most compelling theoretical argument relating eco- qualitatively and quantitatively—yet another way
nomic changes to crime and delinquency among in which delinquent and criminal subcultures re-
the ‘‘truly disadvantaged.’’ Wilson argued that a flect aspects of their ‘‘parent’’ (larger) cultures.
permanent underclass emerged in the United States
during the 1960s and 1970s. Research on delin- All macro-level theories make certain assump-
quent subcultures supports this argument and tions about the individual level of explanation.
documents related changes in gang membership. The most prominent of these assumptions is that
Because fewer good jobs were available to poor, individuals learn subcultural norms, values, and
minority young men, more gang members contin- the behaviors they encourage, by interacting with
ued their association with gangs as they entered others in their environment. The general process-
es of learning have been well established by re-
search and theory (see Bandura 1986; Eron 1987).

513