Change And Evolution Of Law Research Paper

A (macro) evolutionary theory of law would mean, first, that it is possible to speak about stages in the growth or development of legal systems. It would imply a patterned, orderly progression: legal systems begin in stage one, then move to stage two, then three, and so on. Few if any legal scholars believe in ‘evolution’ in the sense of an inevitable progression from stage to stage. Practically speaking, historians and legal scholars have thought of evolution in a weaker sense: not all systems will reach the highest stage (whatever that might be), but the order will always be one, then two, then three (Friedman 1975). The whole concept of evolution is, in a sense, distinctly modern, for the simple reason that many or most traditional legal systems regarded themselves as essentially immutable. Law was divine or magical or the product of natural reason, hence basically timeless and beyond human power. Change was, if anything, dramatic intervention by the gods. On the other hand, insofar as evolution implies progress, it is as unfashionable an idea in contemporary times as is the idea of progress in general.

Any theory of legal evolution has to posit some source of evolutionary change, that is a force that impels legal systems to move along given paths. Essentially, there are three general answers to the question of the source. One is that the evolution of society drags legal systems along with it, so that stages of legal development correspond to stages of social development. Most of the theorists discussed below fall into this category. A second is that law is independent of society, but that it contains within itself some principle of growth or evolution, which unfolds gradually over time.

Such an idea is at least implicit in legal formalism, both of the common law and civil law varieties; development either occurs automatically, or depends on the craftsmanship of judges or jurists; in either event, the law unfolds like the flower from the bud. Among modern authors, Alan Watson perhaps most strikingly illustrates this view: law, for Watson, is ‘largely autonomous and not shaped by societal needs’; it ‘evolves from the legal tradition’ and not from the forces and demands of the surrounding society ( Watson 1985, p. 119.) Still a third view would be that changes in law are basically random or accidental, following no special path, and tending in no special direction. This view does not seem to have any serious support in modern legal thought.

Many classical works in legal sociology and in social thought generally have at least touched on the subject of legal evolution, and most of them fall squarely within the first type mentioned above (Raiser 1995, pp. 318–334, Elliott 1985). Marx expressed an evolutionary theory, after all, in his views of the relationship between ownership of the means of production, and the organization of society; and this theory had definite implications for the legal order. Sir Henry Maine, in his important book, Ancient Law (1861), expressed the view that there was a definite pattern in the way legal systems grew and changed. Ancient law began in a patriarchal stage, in which the family, not the individual, was the unit of legal analysis; moreover, the father had basically the key rights and authority within the family. Birth order, gender, and age determined one’s legal rights and duties. Society was based on status. The movement of ‘progressive societies,’ he stated, has gone in a ‘uniform’ direction; the individual replaces the family; voluntary, arrangements replace ascriptive ones; legal systems, to use his famous phrase, evolved ‘from Status to Contract.’

Implicit evolutionary theories appeared also in other classical theories of law and society, Durkheim, for example, drew a distinction between primitive and modern societies. In The Division of Labor in Society, Durkheim distinguished between ‘mechanical’ and ‘organic’ solidarity. In traditional societies (societies of ‘mechanical’ solidarity), rules and norms were held in common. Violations threatened social cohesion; and had to be punished. The law was therefore mostly concerned with punishments. On the other hand, in modern society (characterized by ‘organic’ solidarity), there is a tremendous amount of complexity and interdependence; and legal rules are mostly civil and ‘restitutive.’ In Durkheim’s scheme, as in Maine’s, there is strong emphasis on contract, that is, societies as they enter the modern world are characterized more and more by voluntary agreements.

The most subtle, and influential, of the classic writings on legal evolution is Max Weber’s (Rheinstein, 1954). Weber was interested in the question: what makes modern law different from older and traditional systems? The distinctive quality he saw was what he called rationality—essentially, the process of making and interpreting law on the basis of general principles and rules. Oracles, ordeals, law-making by charismatic leaders—these are ‘irrational’ forms of making or finding law. Modern legal systems, in developed countries, tend (according to Weber) to replace the irrational with the rational. In particular, modern legal systems are characterized by formal rationality, a ‘peculiarly professional, legalistic, and abstract approach to law.’ A formally rational system uses logic and deductive reasoning to derive results from rules, concepts, and principles. Irrational systems do not produce predictable results—results that can be controlled by the intellect, and therefore results that a citizen can rely on. Modern law, the law of the modern capitalist state, has a natural preference, therefore, for Weberian rationality.

Weber falls short of arguing that this progression, from the irrational to the rational, is inevitable or predetermined. His discussion of legal history cannot be summed up in this single formula, since Weber describes, in rich detail, at least four stages of development (Sterling and Moore 1987). Charismatic legal revelation is succeeded by formally irrational ‘kadi’ justice—ad hoc decision making based on general social norms; then comes a stage of substantive rationality; in this stage a systematic body of rules is imposed on society, but less in terms of juristic reasoning than in terms of religious, ethical, or economic considerations. The stage of formal rationality comes last; in this stage the jurists create a more or less self-contained, highly logical and systematic body of law, in which abstract legal concepts are arranged in some definite and principled order. But this is merely a more or less idealized picture of the growth of law in the West. Weber does not claim that this is bound to happen elsewhere; and he never quite argues that the movement he describes is irreversible. In particular, modern law has tended to drift away from formal rationality in the direction of what Weber called substantive rationality, making or finding law in accordance with principles and policies (economic, social, cultural) that are not strictly ‘legal.’

Richard Schwartz and James C. Miller (1964, see Wimberley 1973) tried to put the concept of evolution on a systematic basis, They drew material from 51 different societies, and tried to ‘scale’ the development of legal institutions. Their scales were in terms of legal institutions: the least advanced societies had no police, lawyers, or forms of mediation. Societies develop mediation first, then some form of policing, and a legal profession last of all. Most of the societies that Schwartz and Miller discussed were preliterate.

In a sense, Weber and Maine (although they wrote long before Schwartz and Miller) pick up where Schwartz and Miller leave off, since their main concern was with advanced societies. Galanter (1966), in an important essay, tried to define what makes a legal system ‘modern,’ which was, of course, Weber’s chief interest as well. He suggests a list of 11 traits, which, in his view, set modern law apart from pre-modern law. The scheme, then, is implicitly evolutionary. For Galanter, modern law is bureaucratic, professional, rational, and universalistic; it is also ‘amendable,’ that is, it lacks ‘sacred fixity.’ Friedman (1994) returns to this theme and lists six traits which, in his view, together go to make up ‘modern legal culture.’ Modern law is committed to change, reform, adaptation; it lacks the conception of timelessness of traditional legal systems. It is pervasive and ubiquitous, and is frankly instrumental. At the same time, it does contain strong notions of fundamental rights. Rehbinder (2000) also lists a group of ‘tendencies’ which characterize contemporary law: a strain toward universalism (this was also one of Galanter’s traits), but at the same time specialization, bureaucratization, and an increase in the sheer amount of legal material.

Most of these discussions of legal change focus, then, on ‘modernity,’ and they are descriptive and explanatory. There is a strong normative strain, however, in the work of Selznick (1969). Selznick was concerned, above all, with the evolution of ‘legality.’ In a later work, Philippe Nonet and Selznick discuss a tendency for laws to evolve toward ‘responsiveness’ (Nonet and Selznick 1978). These ideas have influenced the work of Gunther Teubner (1983), who described a form of evolution from a kind of dry, rulebound bureaucratic system, to a more ‘reflexive’ one, in which the law, particularly within administrative systems, would be responsive to the needs and wants of the governed, and which would develop rules and procedures that would be just and adaptive. Teubner, like Nonet and Selznick, adds a distinctively normative flavor to the more descriptive tone of Weber. Teubner’s views touched off a lively debate (see Blankenburg 1984); some of the empirical issues raised in this line of work remain to be definitively examined.

2. Legal Change

The subject of the theory of legal change has to be dealt with rather briefly, not because it is less important than the theory of legal evolution, but precisely because it is so totally pervasive. One of the most obvious aspects of modern legal systems is the fact that they are constantly changing. Every session of every legislature in every country makes at least some amendments or modifications of the law. The public expects change: every political party in modern Western countries has to have a program of legislation. Legal systems are very much dynamic systems, and it is part of the legal culture to expect them to be such.

Thus all modern legal systems accept change as normal. Not all legal systems, historically, have done so. In many classical systems, and in non-literate systems, the body of laws, or at least crucial aspects of them, were felt to be immutable—or, in any event, beyond, the reach of ordinary humans. Since circumstances in fact changed, and the needs and wants of society changed, these legal systems were in fact changeable, and did in fact change with changing times. But legal change typically came in disguised or muted form; such systems often resort to devices such as legal fictions to conceal what had taken place.

Theories of legal change—theories about what produces legal change—depend, in the first instance, on the answer to larger questions, very notably, the question of the ‘autonomy’ of the legal system. A fully autonomous legal system would be one which operates according to its own inner logic or program, independent of the forces of the outside society; and changes within that system would accordingly proceed according to that inner logic or inner program. A totally non-autonomous system would, on the contrary, faithfully reflect changes in the outside society, and mirror them almost mechanically. Needless to say, most jurists and legal scholars are not found at either pole of this continuum, but somewhere in between. Most orthodox legal scholars cluster closer to the autonomous end of the continuum; social scientists who study law cluster closer to the other end.

In discussing legal change, there are obviously many factors to be taken into account (for a general discussion, see Ferrari 1997, Chap. 6). Not every legal system will change in the same way. This is true both for internal and external reasons. Societies undergoing rapid change will naturally process more legal changes than relatively static societies. Legal systems, particularly advanced ones, which legitimate change, will contain rules and procedures and institutions for making and processing change. Modern parliamentary democracies put the burden of change in formal law on legislatures, for example, though administrative rule-making is an extremely important vehicle of change as well; and the role of courts as change-agents is important in most of these societies. Much change also originates in customs, practices, and norms, which then influence the change-making institutions.

External forces lead to legal change, but the exact causal mechanism varies from instance to instance. A major event—war, plague, revolution—or a major technological or social development (the Industrial Revolution, or globalization, or the so-called sexual revolution) will inevitably lead to legal change, some- times on a massive scale; but the exact form of the change is never precisely predictable. The ‘outside’ event or situation will impact a society which has a particular pattern or structure, and that existing pattern or structure will bend and mediate the influences of the ‘outside’ forces prismatically. In any event, these forces will create their impact through making changes in the general legal culture—that is, in the pattern of demands, expectations, and values that bear on the legal system—and legal change will result from this change in legal culture, rather than flowing immediately from the ‘outside’ event or situation. Moreover, once a legal structure, doctrine, or institution is in place, it can exert its own force on the legal culture; it affects legal ideology, and it may come to seem natural or inevitable. The process of legal change, then, is dynamic and interactive and forms a neverending chain of causes and effects.

In theory, one can distinguish four types of legal change, depending on the point of origin of the change, and its final point of impact (Friedman 1975): (a) some change originates inside the legal system, and also spends whatever impact it might have within that system; (b) some change begins inside the system, but in fact does have an impact on society; (c) some change originates outside the legal system, but affects only the legal system, and ends there, with no further impact on society; and (d) some change originates outside the legal system, but ultimately has some impact on society, that is, it is more or less effective.

The first two are examples of technical change, and include many projects of ‘law reform’ or codification, within legal systems—technocratic work of jurists, which has little or no effect on the actual operation of the legal system. Many examples can be mentioned. Codification often falls into this category. But sometimes, wittingly or unwittingly, what begins as purely technical change has unforeseen consequences in the larger society. When this occurs, it is likely that the technical change simply furnishes a convenient ‘hook’ or formal excuse for some group in society which uses the technical change as a way to advance its goals. The last two are instances of change that begin with social forces or social movements. Legal change that results from demands arising out of social forces or social movements should, in theory, produce an impact in society. Where this does not happen, it is usually because some other social force or social movement is able to resist change, and the result is a kind of stalemate: a ‘law’ is passed, for example, after a bitter struggle between interest groups, but the ‘losing’ group has enough power to prevent effective enforcement.

The fourth type is, in many ways, the most interesting and pervasive, and it ranges all the way from revolutionary changes in the law—such as the changes that took place after the Russian or the Chinese revolutions; or, contrariwise, that took place in Russia after the collapse of the Soviet Union—to relatively small, incremental changes, which produce only a minor effect on some portion of the population.

The discussion above has mostly assumed change in formal, overt aspects of law. But legal systems are complex, and there are many instances where one aspect of the system changes while others remain (on the surface) unchanged. For example, the formal or official law might remain unchanged, while the operating system changes, perhaps quite drastically. One example would be divorce law and practice in the United States, in the late nineteenth and early twentieth centuries. The formal law of some states (New York, for example) preserved rules that made divorce difficult and expensive; but at the operating level, collusion and other devices made it possible for citizens of New York to get divorces that in theory they were not entitled to have. What prevented formal change, and led to this example of a dual system, was apparently a political situation which for various reasons was deadlocked. Enactment of reform was politically impossible. The growing demand for divorce had to seek other channels, which it did quite successfully. Legal systems very commonly change in this ragged and complex manner.

One should also distinguish between long run change and short run change (and various gradations in between). In the long run, legal systems are almost infinitely plastic, and change to fit the shape of the society they are embedded in. A feudal system will generate a legal system that deals with the problems and institutions of feudal society and reflects its norms and structures; a capitalist, or socialist, or tribal society will behave in a similar manner. But in the very short run, random, accidental, or ‘internalist’ factors may condition or shape forms of legal change. It is this fact in modern societies that gives the impression of legal autonomy—an illusion that the legal system has a tough and impermeable outer skin. Another factor is the strength and power of the legal profession itself, which may have a vested interest in resisting certain kinds of change.

The rate and forms of change also depend on whether the society is relatively open and democratic, or relatively closed and aristocratic or totalitarian. In an open society, ‘public opinion’ is an important factor in shaping the law. Public force would be a more accurate way of putting the matter. ‘Public opinion’ as such—whatever it is that polls and surveys measure— has no role in itself in bringing about legal change, except insofar as it influences legislators or judges, or is translated into public action ‘Public opinion,’ therefore, as a formative element in legal change, cannot be equated simply with the wishes of the majority, as measured by some survey instrument. Salience of opinion is of crucial importance, because it affects whether or not attitudes are translated into behavior. Moreover, in no society, no matter how democratic, can one assume equality of power and influence; quite the contrary. As an axiom of legal change, one can start with the notion that a legal rule, doctrine, practice or institution will change if the social force exerted against it is greater than the force generated to preserve it intact.

This is a very abstract, and perhaps not very helpful, formulation. The interesting questions are more specific: in any given situation, what are the social forces that are in play, and what lies behind the exertion of social force?

In any society, some people have more actual or potential power than others; and more of a propensity to use it. A wealthy corporation simply counts for more than (say) an impoverished and uneducated slum-dweller. Moreover, it can be assumed that at any given time, the actual social force exerted on an issue is much less than the potential social force, since most people and institutions, even the powerful ones, most of the time, are indifferent to or ignorant of the majority of the legal issues and problems within a given society. For this reason, scandals, incidents, and ‘horror stories’ are particularly important sources of legal change in open societies: they can arouse the sleeping giant and turn potential force into actual exerted force. Hence the role of the media—which communicates these scandals, incidents, and ‘horror stories’—is a particularly powerful, but insufficiently studied, catalyst for socio-legal change.

Particularly in common law systems, there is much discussion of the role the courts have played in bringing about social change. To what extent, for example, did Brown s. Board of Education (1954) make a difference to American race relations? This is a much discussed, and somewhat controversial question (Rosenberg 1991). That the courts are an important institution in American society and play some role in bringing about social change cannot be denied; the question is how much. There is a small literature on the impact of judicial decisions, but it seems impossible to generalize, since the amount of change, if any, which a judicial decision brings about seems to vary with the circumstances; no two cases seem alike. The issue is not confined to common law countries. Modern courts, in many countries, have the power of judicial review, and their potential for pushing society along certain, paths has certainly increased. There are some signs of dramatic change in judicial culture in the Western world in general. Crusading judges in Italy led to the collapse of the party system; and an activist Spanish judge touched off a legal and political crisis when the judge issued an order directed against General Pinochet, the former dictator of Chile. With regard to judicial decisions, and to legal innovations in general, impact depends on many factors. One obvious factor is whether and how the innovation has been communicated to its audience—a factor we have already mentioned, with regard to scandals and incidents. One should also distinguish between immediate changes (on the litigants, or on a particular group which is the subject of legislation), and more remote, indirect, and long-term types of change. Many legal commands have effects which ripple out into society. As is generally the case, the research on all such issues is thin, and it is difficult so far to generalize.

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