182
in this approach is one of purity; we must
anthropomorphize the social process by, in
effect, giving it a motivational system. I believe
that sociological meta-strategies can be generated
that raise psychological questions neither con-
cretely nor metaphorically. Parsons and now
Mayhew have advanced beyond psychology’s
concrete questions but not beyond the psycho-
logical metaphor.
This review should not need a closing defense
of Mayhew’s book. In form, Law and Equal
Opportunity is a model for the sociology of law.
Mayhew mediates the dialogue between theory
and research in the strong style of an accomplish-
ed social scientist. He is out to build sociological
theory of law, not merely to gather information
about legal processes. This style remains
embarrassingly distinctive in the sociology of
law. The book should stand for some time as a
rich contribution to the field. The happiest
closing is that Law and Equal Opportunity is
only Leon Mayhew’s first offering.
REFERENCES
Becker, H. S.
1963 Outsiders. New York: Free Press of Glencoe.
Berger, M.
1967 Equality by Statute. Garden City, New York:
D o u bleday.
Blumrosen, A. W.
1%5 “Anti-discrimination laws in action in New
Jersey.” Rutgers Law Review 19:189-287.
Weber, M.
1966 Max Weber on Law in Economy and Society.
Max Rheinstein (ed.). Cambridge, Massa-
chusetts: Harvard University Press.
SOCIOLOGICAL INQUIRY
TELEOLOGY AND VALUES
IN THE SOCIAL SYSTEM:
REPLY TO DONALD J. BLACK
LEONH. MAYHEW
University of California, Davis
Some years have passed since I collected the
data, thought the thoughts, and wrote the words
that comprise Law and Equal Opportunity. I
began to think about the subject in 1959, the raw
materials were gathered in the early sixties and
I began to feel that I understood the materials
in 1962. The intervening years have brought
some of the detachment that comes as one’s
work turns from activity into history. Donald
J. Black’s incisive review provides a welcome
opportunity t o reconsider what I did, to view
Law and Equal Opportunity from a new per-
spective as a small piece of intellectual history.
While I am on the subject of intellectual his-
tory allow me one small, petulant display of
wounded vanity. I think Black misleads in sug-
gesting that my “central generalization is familiar
in the literature on antidiscrimination law.” It
is true that the idea that the pattern of com-
plaints by Negroes does not exactly correspond
to the structure of discrimination in the com-
munity is now rather well known. Moreover,
the charge that civil rights commissions often fail
to attack the worst bastions of racial exclusive-
ness was fairly commonplace at the time I did
my study. However, at the time I began to
recognize this pattern, in 1962 (and published
an article about it in a student journal), the shape,
causes, and consequences of the pattern were
only dimly perceived. Insofar as the problem
was recognized it was seen as an accident of
poor administration and not as a structural
phenomenon, deeply rooted in the organization
of the legal process. Furthermore, the point
had never been very well documented.
I make this point for reasons beyond mere per-
sonal pique; the matter bears on a central theme
of Black’s review, the idea that Law and Equal
Opportunity displays a liberal bias. Some would
say that in accurately and honestly depicting
the pattern of complaints to a civil rights agency
I acted most illiberally. Previous critics had
been willing to say that some of the most
flagrant discrimination was not being attacked
through a procedure based upon complaints
initiated by citizens, and that the pattern of
discrimination and of complaints were out of
alignment in that limited sense. But no one had
been willing to show just how misdirected com-
plaints were. In fact, in publishing Law and
Equal Opportunity, I was a little afraid that
there was a hint of anti-liberal, anti-Negro
connotation in revealing just how misdirected,
REVIEW SYMPOSIA 183
ill-founded and trivial were the raw materials ent perspective. When disturbances occur in
of law enforcement. After all, liberals in general social systems the participants seek solutions.
and civil rights groups in particular had sold In seeking solutions they do not create them
traditional civil rights legislation for years as an de novo, any more than two people meeting in
effective tool in the fight against discrimination. the street create a novel language to com-
Honest anaIyses of the data showed that the municate. Rather, the participants draw upon
misalignment of actual and potential targets the established resources of the social system, that
went well beyond the omission of some flagrant is, shared values and prior commitments. In
offenders from legal scrutiny; there is actually consequence, adaptive changes simultaneously
a reverse relationship between discriminating reinforce higher levels of order in the social sys-
and being a target of legal action. I can imag- tem (or, in the alternative form of the theory,
ine information of this sort being put to quite adaptive changes simultaneously institutionalize
anti-liberal uses. values).
This however is a quibble. Black’s claim is I thought I had made this generd point in
more fundamental. I am avowing my belief that Law and Equal Opportunity at pages 26-30
social science should be detached and honest and where the main theme of the book is stated, I
that Law and Equal Opportunity meets those think, in nominalistic terms, without the sort of
criteria. Perhaps Black would agree that con- reification that Black sees as a fault of the
sidered as a work of description the book meets theory.
this test. However, he argues that the ex- Still, I have not confronted the specific crit-
planatory and interpretive framework of the icism of the teleological blending of empirical
book is intrinsically biased in a liberal direction. analysis and political evaluation that he finds in
Again, on subjective grounds I resist the the book. Black‘s specific line of argument
charge. As one who started his investigation as starts with the problem of defining the content of
an opponent of quotas, “fair-shares” and com- a value system. To speak about values we must
pensatory treatment, and who felt led by the logic first define them and yet, according to the theory
of the facts to a more radical opinion rather of institutionalization, values only become defin-
against my will, I find it difficult to believe that ed in the course of the social process. How then
I was led to my final position as an inevitable does the analyst specify values? Does he wait
consequence of my initial biases. The charge and see what versions of a value come to be
does not seem to square with the ambivalent un- accepted and then describe them in a post hoc
easiness I experienced when early drafts of Law manner, or does he preselect some definitions
and Equal Opportunity were picked up by as correct? If any one version is selected as
militants in the Boston community and used as a correct by the observer, then does not that
weapon in the fight to have Mrs. Mildred observer adopt a political stance? Black states
Mahoney, conservative chairman of the Massa- the dilemma well and then proceeds to claim that
chusetts Commission, ousted and replaced by a I adopted the latter approach. I stipulated the
more militant leader. Nevertheless, my subjective validity of the “fair-share” approach to equal
feelings fail to rebut Black‘s lucid argument. opportunity and, in consequence, my analysis
Black claims that I fell victim to the inherent has a value bias. According to Black, I might
teleology of my conceptuaI framework, a have simply said, “Well, this is how it turned out
teleology that I share with action theorists in -the ‘fair-share’ idea seems to be winning.”
general and Talcott Parsons in particular. Let Then the analysis would have been merely his-
us first examine the problem as it appears in the torical, a de fact0 description of what happened.
abstract in Parsonian theory. According to In my opinion, there is a way to avoid the
Black, if we utilize Parsonian theory “we must dilemma. Values can be represented as a set of
anthropomorphize the social process by, in contingent alternatives. The analyst specifies the
effect, giving it a motivational system.” In my meaning of a social value, not by choosing one
opinion Black slips here into a common mis- definition, but by specifying a range of alter-
understanding of the theory of institutionaliza- natives. A value is, in effect, a common
tion. It is true that the theory posits movement denominator for the normative discourse of social
of social systems over time toward a closer actors facing an integrative problem. The dis-
correspondence between the values of the system course can only be understood on the assumption
and its lower levels of institutional order. How- that the participants defer to, and justify by, and
ever, there is no assumption that this movement in that sense share a general conception of the
occurs because the system as a system has a just society. Within this framework, a variety
motive. Properly speaking, the realization of of alternative interpretations compete for accept-
values in social structure is a by-product of the ance in the social arena.
pursuit of goals by actors. The theory of Alternatives can be judged according to their
institutionalization is merely the theory of the viability relative to the concrete problems of
hierarchy of control viewed from a slightly differ- integration. To judge one alternative as more
184
viable than another is not to claim for it any
ontological or metaphysical validity; it is merely
to make a contingent prediction on the assump-
tion that, in the long run, those interpretations of
values will prevail that have greater capacity to
resolve conflict.
This is what I tried to do in Law and Equal
Opportunity. First, three relevant versions of
the value of equal opportunity were specified.
Then the relatively low capacity of the legal
definition was outlined. I then predicted that
the fair-share approach (or some close relative
in the form of affirmative compensatory action)
would have more capacity. I did not claim that
afiirmative action was metaphysically valid, only
that it had more capacity to do the job. At this
point Black might well respond: “What job?
Mayhew is begging the question! He is im-
plicitly assuming that the actual incorporation
of Negroes into the labor force is the goal of
the law and the true meaning of equal oppor-
tunity.”
Not so. Rather, I am alleging that the job is
the integration of the social system. Unless the
social system actually incorporates marginal
groups, there will be continuing disturbances.
To repeat the theoretical point, the theory of
institutionalization is a theory of integration.
It claims that actors respond to disturbances by
drawing upon common values. In so doing
interpretations of values become progressively
institutionalized, and interpretations that can
actually meet demands and problems are most
likely to survive the process.
I am prepared to abandon this theory as
empirically false but I do not believe that it has
SOCIOLOGICAL INQUIRY
the particular analytical faults that Black alleges.
Nevertheless, Black’s lucid critique has caused
me to re-examine the structure of the book and
I am now more aware of some of its failings.
I would agree that some are grounded in the
difficulty of using the theory of the social system.
It is difficult to avoid the post hoc characteriza-
tions that Black fears. Many attempts to inter-
pret social events in the framework of the theory
of the social system seem to take on an almost
mystical aspect. Given social arrangements
come to be described post hoc as immanent
manifestations of ultimate values. I am con-
vinced that this fault stems from failure to
properly specify a range of alternative meanings
of values in analytical terms. Of this I too am
guilty. 1 merely outlined some of the versions of
equal opportunity that happened to be current in
Massachusetts. If values are to be defined in
terms of a set of potential social implications, it
is important to develop an analytical apparatus
for limiting the range of relevant possibilities and
systematically defining the options. Perhaps it
would be possible to develop a functional
scheme for specifying four potential interpretive
meanings for any value, using the logic of
Parsons’ four functions. Such a scheme would
force the observer to examine in a systematic
manner the functional exigencies involved in
specifying values, something that I failed to do.
It was, I believe, this failure that led Black to
conclude that any action theorist must either be
post hoc or arbitrary. While I do not believe
that the method constrains this forced choice,
I believe that Black was right to raise the issue.