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Chapter 7: Law and Social Change

For decades now law and society theorists have been preoccupied with attempts to explain the relationship between legal and social change in the context of development of legal institutions. They viewed the law both as an independent and dependent variable (cause and effect) in society and emphasized the interdependence of the law with other social systems.
In its most concrete sense, social change means large numbers of people are engaging in group activities and relationships that are different from those in which they or their parents engaged in previously. Thus, social change means modifications in the way people work, rear a family, educate their children, govern them, and seek ultimate meaning in life. In addition to law and social change there are many other mechanisms of change, such as technology, ideology, competition, conflict, political and economic factors, and structural strains.

Reciprocity between law and social change


At the beginning of industrialization and urbanization in Europe, Bentham expected legal reforms to respond quickly to new social needs and to restructure society. He freely gave advice to the leaders of the French revolution, because he believed that countries at a similar stage of economic development needed similar remedies for their common problems. However, Savigny believed that only fully developed popular customs could form the basis of legal change. As customs grow out of the habits and beliefs of specific people, rather than expressing those of an abstract humanity, legal changes are codifications of customs, and they can only be national and never universal. 
There are two contrasting views on this relationship: 
  1. Law is determined by the sense of justice and the moral sentiments of the population, and legislation can only achieve results by staying relatively close to the prevailing social norms.
  2. Law and especially legislation, is a vehicle through which a programmed social evolution can be brought about. In general, a highly urbanized and industrialized society like the US law does play a large part in social change, and vice versa, at least much more than is the case in traditional societies or in traditional sociological thinking. [eg. In the domain of intrafamily relations, urbanization, with its small apartments and crowded conditions, has lessened the desirability of three-generation families in a single household. This social change helped to establish social security laws that in turn helped generate changes in the labor force and in social institutions for the aged.]

Social changes as causes of legal changes


In a broad theoretical framework, social change has been slow enough to make custom the principal source of law. Law could respond to social change over decades or even centuries. Today the tempo of social change accelerated to a point where today’s assumptions may not be valid even in a few years from now. The emergence of new risks to the individual as a result of the decrease of the various family functions, including the protective function, has led to the creation of legal innovations to protect the individuals in modern society. Eg provisions of workers compensation, unemployment insurance, old-age pensions. Many sociologists and legal scholars assert on the basis of a large amount of accumulated data that technology is one of the great moving forces for change in law in three ways: (read page 335 paragraph 3). The computer and easy access to cyberspace, especially internet, also have inspired legislation on both the federal and the state levels to safeguard privacy, protects against abuse of credit information and computer crime. Change in law may be induced by a voluntary and gradual shift in community values and attitudes. [eg. People may think that poverty is bad, and laws should be created to reduce it in some way.] Alternations in social conditions, technology knowledge values, and attitudes then may induce legal change. in such cases law is reactive and follows social change. However, changes in law are only one of many responses to social change. Additionally, laws can be considered both as reactive and proactive in social change.

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 law.
  • In Spain law was used to reform agrarian labor 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. In 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 importantindirect 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 asdesegregation 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:
  1. Law must emanate from an authoritative and prestigious source
  2. Law must introduce its rationale in terms that are understandable and compatible with existing values
  3. 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
  4. Enforcement of the law must be aimed at making the change in a relatively short time
  5. Those enforcing the law must themselves be very much committed to the change intended by the law
  6. The instrumentation of the law should include positive as well as negative sanctions
  7. 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.

Legitimate Authority


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: 
  1. 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].
  2. 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].
  3. 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


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 honor, and it guarantees political, ecclesiastical, and other positions of authority and social preeminence.

Weber emphasizes two points:
  1. Conflict of interests provide 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.
  2. 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.

Law as a policy instrument


Yehezkel Dror contends that law by itself can’t bring directed social change but it is one component of many policy instruments that must be used in combination. In the case of social problems like drug abuse, race relations, law can be used effectively as a policy instrument. But, sometimes in order to bring change law should be an ingredient of a larger policy (the Act of Economic Opportunity that attempted to decrease poverty in US).

Usually law is used as an instrument of social change outside of a broader policy framework in reform oriented litigation, such as the restrictions of 1992 on abortion. But, broader issues concerning environmental or natural resources management issues should be reformed using broader policy making frameworks.

Morality and Values


The cause and effect relationship between law and change is very difficult to identify because the ability of law to produce change isprobabilisticcontingent and sequential because even though some changes can occur, other factors such as the morality and values of society affect the efficacy and time lag of laws in causing change. On certain issues like truth, individual liberty, etc., a shared morality and shared values are essential to unify the society. However, not all values are essential and those should be able to change. To cause change, a law should be supported by the society. Its efficacy in change is limited on moral issues in society. Examples are the ineffectiveness of laws prohibiting adultery, homosexual marriage or sexual abuse. The laws prohibiting many drugs, especially marijuana, have been called the “new prohibition” to underline similarity with laws prohibiting alcohol usage. It seems that laws on important drives are more difficult to apply than those on less compelling drives. Marijuana is seen a source of pleasure for many people therefore control should be imposed only against polluted merchandise. Morris Grinsberg suggests that laws should deal only with acts that can be precisely defined and with external observable acts; and the laws should as far as possible respect privacy.

Thus, laws most likely change external behavior, which are consequently later on followed by changes in attitudes, values and morals. So the range of the “external” is enlarged and sometimes affects personal preferences and tastes. In contrast, William Graham Sumner said that laws can regulate only behavior and not values, morals and attitudes. Examples are laws asserting equality for blacks which were not accepted by whites for many generations. On the other hand, this law that required change in behavior has gradually changed attitudes too. Today, the idea of racial superiority is no longer characteristic of whites.

The law can change morality and values under specific conditions. Even though there aren’t enough empirical studies, it is true that the efficacy of law depends on it adaptation to morality and values if it aims change.

RESISTANCE TO CHANGE


In most cases laws face resistance by members of society who find different reasons for their resistance such as their values, customs, or even the cost of change and sometimes because people feel threatened by the change. Knowing the conditions of change helps in the implementation of laws. The factors that are a barrier to change are separated into social, psychological, cultural, and economic factors and all are interdependent.

Social factors

Vested interests

Change is opposed by individuals or groups who fear they will lose their power, prestige or wealth when the new law is introduced. Examples are vested interests of residents in a community who oppose zoning regulations or interstate highways, vested interests of faculty in getting research money, etc. Also, the efforts of the Soviet Union to assert independence of Moslem women against males were opposed by bands of males who murdered women that obeyed the law. 

Social class

In highly stratified societies, people of upper classes oppose changes because they fear losing privileges over the lower classes. Ex: inPakistan people of different classes can go to the same schools, draw water from the same well etc. generally working class people supports changes while the lower and upper classes resist changes.

Ideological resistance

It is quite widespread. Example: resistance of Catholic Church to laws and legislation on the removal of some restrictions on abortion and birth control. In 1982 a pill that ended pregnancy within weeks was developed in France. By 1990s it was available in France, Sweden, and Britain. But protests of antiabortionists and threats of US citizens no to use products of the company that sold the pill stopped its spread. From 2000 this pill has been approved in US. Usually religious assumptions, interpretations on power, security are not open to change.

Organized Opposition

Sometimes individual resistance to change can be organized and channeled into social movements or lobbyists. Ex: John Birch Society has opposed acceptance and legal protection of pornography. The lack of opposition can be fatal as the example of Jews who didn’t organize resistance.

Psychological factors

Habit

Habits are behaviors that people are accustomed to and are comfortable with and as such habits resist change. Customs are collective habits of a society and trying to change them requires a reorientation of values and behaviors of society. Ex; introducing the metric systemin US was resisted.

Motivation

Is very important in accepting change through law. Some motivations are related to culture and may allow change and some focus on preserving status quo. Some motivations are universal such as the desire for prestige and economic gain but if those are threatened, change is resisted.

Ignorance

Is often the cause of prejudice and is related to the fear of the new. Ex: many individuals assumed that citrus fruit caused problems to the digestive tract. Once it was proved otherwise, the resistance to citrus fruit faded.

Selective perception

Even though law is intended to be universal, the perception of people on law is selective and varies with economic, cultural anddemographic variables and also with attitudes, needs and values of people. A change is accepted easily if it is related to the interests of people and supports their values. Ex: in India law provides distribution of family-planning info and supplies. But many villagers refuse usingcontraceptives because they think the law aim to stop birth completely. The laws should be formulated clearly so there in misunderstanding by people.

Moral development

The obedience to law relies highly on a sense of obligation. Moral codes are another factor. Lawrence Kohlberg defines 6 stages of moral development:
  1. Obedience and punishment - involves respect to superior authorities and avoidance of troublepremoral stage
  2. Instrumental relativism - people try to satisfy needs by negotiating with otherspremoral stage
  3. Personal concordance - people adhere to prevailing norms and comply with the majority
  4. Law and order - people respect those in authority and focus on doing their duty
  5. Social contract - contracts are used for commitments and people respect them
  6. Individual principles - include conscience, mutual trust and respect as principles of behavior
If this theory is true, the law is limited on the stage of moral development of citizens which should be considered depending on their social class. If the majority is stages 1 and 2, institutional enforcement is used to maintain order. In stages 3 and 4 law is more limited and in 5 and 6 even more limited. But this depends on the conformity of law with beliefs and values of society. 

Cultural factors

Fatalism

In many cultures people believe they have no control over their lives and God or evil spirit causes everything. They don’t use fertilizersbecause they believe God is responsible for their success. They resist change because it is human-enacted and not from divine origin.

Ethnocentrism

Some people consider themselves “superior” with the only rights ways of thinking, etc. This causes ignorance towards others’ ideas and methods and resistance to change. Ex; whites that consider themselves superior have hindered integration of other races in many institutions.

Incompatibility

When the proposed law and change is contradictory to the system of the target group change is hardly implemented. Ex: in Israel the law of reducing legal marriage age for girls to 17 was not applied by Jews and Arabs that allow marriage even at lower ages. 

Superstition

Which is a belief not substantiated by facts, can hinder change. Ex: In some places a baby is not given water for many months after birth because it is believed water’s cold nature upsets the baby’s heat equilibrium. In Zimbabwe women do not eat eggs because they are believed to cause infertility.

Economic factors

Limited economic resources and high costs are often a barrier to change. Change through law is very costly because of the instrumentation of legislation, administrative ruling or court decisions that are all costly. For ex. federal regulations have increased the costs of institutions of higher education thus, resist further changes and require modification of current regulations. The distribution of costs and benefits also effects resistance. If they are equally distributed there is little resistance but if benefits are low and costs are concentrated, resistance is high.
Generally economic factors are decisive in affecting resistance to change. No matter how much somebody wants something if economic sacrifice is too great or they can’t afford it, change doesn’t occur.
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