Law as an Instrument of Social Change
The conversion of Rome from republic to empire could not have been accomplished except by means of explicit legal decree buttressed by the doctrine of imperial sovereignty. Law, far from being a reflection of social reality, is a powerful means of accomplishing reality – that is, of fashioning it or making it.
- The Soviet Union succeeded in making enormous changes in society by the use of
In Spain law was used to reform agrarian labour and employment relations.
- China also managed to moderate through law its population growth and as a result devote more of its resources to economic development and modernization.
The law, through legislative and administrative responses to new social conditions and ideas, as well as through judicial re-interpretations of constitutions, statutes or precedents, increasingly not only articulates but sets the course for major social change. Attempted social change, through law, is a basic trait of the modern world. Many authors consider law as a desirable necessary and highly efficient means of inducing change, preferable to other instruments of change. In present-day societies, the role of law in social change is of more than theoretical interest.
n many areas of life such as education, race relations, housing, transportation, energy utilization, protection of the environment, and crime prevention, the law and litigation are important instruments of change. Law plays an important indirect role in social change by shaping various social institutions, which in turn have a direct impact on society. [eg. Mandatory school attendance upgraded the quality of the labor force, which in turn played a direct role in social change by contributing to an increased rate of industrialization.
The law interacts in many cases directly with basic social institutions, constituting a direct relationship between law and social change]. Social change through litigation has always been an important feature in the US. Whether the change produced by such action is considered ‘constructive’ or ‘destructive,’ the fact remains that law can be a highly effective device for producing social change.
The efficacy of Law as an Instrument of Social Change
As an instrument of social change, law entails two interrelated processes: the institutionalization and the internalization of patterns of behavior.
Institutionalization of a pattern of behavior refers to the establishment of a norm with provisions for its enforcement (such as desegregation of public schools).
Internalization of a pattern of behavior means the incorporation of the value or values implicit in a law (eg. Integrated public schools are ‘good’).
The extent to which law can provide an effective impetus for social change varies according to the conditions present in a particular situation. Evan suggests that a law is likely to be successful to induce change if it meets the following seven conditions:
- Law must emanate from an authoritative and prestigious source
- Law must introduce its rationale in terms that are understandable and compatible with existing values
- Advocates of the change should make reference to other communities or countries with which the population identifies and where the law is already in effect
- Enforcement of the law must be aimed at making the change in a relatively short time
- Those enforcing the law must themselves be very much committed to the change intended by the law
- The instrumentation of the law should include positive as well as negative sanctions
- The enforcement of the law should be reasonable, not only in the sanctions used but also in the protection of the rights of those who stand to lose by violation
(Suggestion: read pg 341-342)
Advantages of law in creating social change
In many instances, the state of the art of social change endeavors is not methodologically sophisticated enough to distinguish clearly among casual, necessary, sufficient, and contributory conditions to produce desired effects in society. The advantages of law as an instrument of social change are attributed to the fact that law in society is seen as legitimate, more or less rational, authoritative, institutionalized, generally not disruptive, and backed by mechanisms of enforcement.
A principal advantage of law as an instrument of social change is the general feeling in society that legal commands or prohibitions ought to be observed even by those critical of the law in question. To a great extent, this feeling of obligation depends on respect for legitimate authority and the perception of power. Webber says that there are three types of legitimate authority:
- Traditional authority bases its claims to legitimacy on an established belief in the sanctity of traditions and the legitimacy of the status of those exercising authority. The obligation of obedience is not a matter of acceptance of the legality of an impersonal order, but rather a matter of personal loyalty [Rule-of-elders].
- Charismatic authority cases its claim to legitimacy on devotion to the specific and usual sanctity, heroism, or exemplary character of an individual and the normative patterns that are revealed or ordained. The charismatic leader is obeyed by virtue of personal trust in his or her revelation or exemplary qualities [Moses, Christ, Mohammed, Gandhi].
- Rational-legal authority bases its claims to legitimacy on a belief in the legality of normative rules and in the right of those elevated to authority ti issue commands under such rules. In such authority, obedience is owed to a legally established impersonal order.
“Rational” people “voluntarily” make a “contract” that generates the impersonal legal order.
The binding force of law
Law is binding because most people in society consider it to be. Some consider the content of the law to command obedience, which, in turn, is seen as a compelling obligation. The law achieves its claim to obedience, and at least part of its morally obligatory force, from a recognition that it receives from those, or from most of those, to whom it is supposed to apply.
Even when laws are against accepted morality, they are often obeyed. The extermination of more than six million Jews in Nazi Germany, clearly the most extreme instance of abhorrent immoral acts, was carried out by thousands of people in the name of obedience to the law.
Milgram contends that the essence of obedience is that individuals come to see themselves as instruments for carrying out someone else’s wishes, and they therefore no longer view themselves are responsible for their actions. Under certain conditions many people will violate their own moral norms and inflict pain on other human beings, and that succinctly underlines the notion that most people willingly submit to authority and, by extension, the law.
Sanctions for disobedience to the law are surely among the primary reasons that laws have binding force. “The law has teeth; teeth that can bite if need be, although they need not necessarily be bared.” Sanctions are related to legal efficacy and are provided to guarantee the observance and execution of legal mandated to enforce behavior.
Limitations of Law in Creating Social Change
To most people law is imposed externally in an almost coercive way. Today people are characterized by a “crisis of confidence” and alienation from social institutions because of uncontrollable economic conditions. Therefore, law is hardly an expression of their will.
Few people participate in the formulation of laws and legislation. One of limitations of law as an instrument of social change is the possibility of prevailing conflict of interest. Other limitations related to the efficacy of law in social change include divergent views on law and the prevailing morality and values.
The scarcity of resources causes conflicting interests. Decades ago, Karl Marx and Max Weber said that many laws are created to protect special economic interests. This is because economic interests are strong factors influencing the creation of laws.
Weber recognized that besides economic interests law protects other interests too such as personal security, personal honour, and it guarantees political, ecclesiastical, and other positions of authority and social pre-eminence.
Weber emphasizes two points:
- Conflict of interests provides the base for the formation of laws that bring change; so the stratification of society and the preferences of those who promulgate the changes determine the role of laws in social change.
- Law as an instrument of social change can be seen as the organization of power and processes that protect special interests in society and result in social change.
For powerful and influential people “the law in effect structures the power relationships in a society, maintains the //status quo//and protects various //strata//against each other”. Many legislative enactments, administrative rulings, and judicial decisions reflect the power configurations in society.
Even members of legal professions serve to unify the power elite by serving as “professional go-betweens” for principal political, corporate and other interest groups.
Interestingly, a lot of people who are coerced or oppressed by the laws imposed by a ruling minority are unaware of their oppression. They may even strongly support the existing legal system because the ruling party has used its power to confuse them as if they are protecting their true interests.
However, a distinction should be made between what people claim as their interests and what their “true” interests are. There are many examples when people are organized to protect what they conceive as their interests. Blacks have been instrumental in the passage of many civil rights laws.
Farmers have affected laws dealing with migrant workers, farm subsidies, importation of food items, etc. so it is the division of society into the “powerful” and “powerless” that simple? The mechanisms of change through law include large segments of the population. Even in democratic countries, the large-scale participation of citizens in social change is not feasible; however, the lack of participation doesn’t mean lack of representation.
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