Social Change And The Law Research Paper

For some theorists law is only or mainly a dependent variable in society. Class structures, levels of economic development, culture, gender and so forth explain the specific characteristics of legal institutions and their changes. The opposite position conceives law as a tool for steering society in any possible direction. Human behavior is in their view largely determined by the existence of legal rules and sanctions. Intermediate positions which recognize both influences on the law and from the law are found in interdisciplinary studies, in particular in the field of the sociology of law.

1. Law As Social Or Supernatural

Western approaches share an understanding that law is part of the social world in its broadest sense. It emerges from social life or is intentionally created by social actors to steer society in intended directions. Law in the books is as much a product of society as is law in action. Depending on how law is defined, it is regarded as part of the culture or of the structure of society. But this view was never shared by all legal cultures and is at present mainly challenged by Islamic cultures. Muslim law—the Shari‘a—is an integral part of Islamic religion. Divine revelation is its source. No authority in the world is qualified to create law or to change it, and not to obey Muslim law is a sin leading not only to criminal sanctions but also to punishment in another world. Hence state regulation through legislation encounters serious obstacles in some of the more orthodox Islamic countries and law contributes little to much needed social reform.

2. Differences Between Law And Society

Law is then necessarily different from society in Islamic logic. Western thinking also observes a necessary incongruence of law and society. In this case it does not follow from the divide between the secular and the divine but from the normative element characteristic for legal methodology. Although legal doctrine and legal practice in great part describe prevailing opinions and customs, they also develop new rules and always add value judgements. Normative expectations are by definition (Luhmann 1985) different from actual social behavior and a certain tension between them both exists in all societies. The gap between law and social practice is getting wider with increasing legislative activities observable since the middle of the nineteenth century, first in Europe and then in most other parts of the world. On closer inspection there are a number of gaps in every legal system: between higher courts and daily legal practice, between legislative acts and administrative routines, between lawyers and their clients, and between legally relevant behavior in different strata of the society.

3. Social Change

Societies are complex networks of patterns of relationships constantly influenced and changed by new situations, new ideas, new social values, new technologies, and new innovations. Social change is a product of factors such as conflict and structural strains, economic pressures, political and ideological preferences, technology or the natural environment. However, none of these factors deserve undue weight as unique or prevailing ‘cause.’ Disregarding exceptional events like natural disasters, wars, or revolutions, societies change on the basis of a multitude of influences and do so permanently. Although ‘modern’ economic structures, cultural patterns, and technological innovations accelerate the social dynamic, traditional societies have always been able to adapt and to develop to a greater or lesser degree. Current social theories believe that change and disorder are normal and what needs sociological explanation is not disorder but exceptional phenomena like order, stability, and stagnation.

4. Social Change And The Law

Law is an element of society, and as such, is continuously changing with its surrounding social environment. More static societies like tribal communities and those societies which define law as divine show a smaller degree of permanent legal change, whereas ‘modernity’ is characterized by rapid change in most areas of law. Market economies create their legal support structures, grass root groups strive for civil rights or environmental regulation, and organized crime is a constant challenge for the administration of justice, creating pressures for more sophisticated legal devices. But the opposite is also observable: law influences or even creates social change. Most reforms initiated by state agencies use law as a tool for their policy aims.

The tension between law as a result of changing social demands or as a mover of social change is a much debated subject in the sociology of law (Vago 1997, Macaulay et al. 1995, Roach Anleu 2000). At issue is not so much the social control function of the law and even less the role of the law as a support structure for contractual relations. Rather, there is an apparent consensus that law is a key instrument for those purposes. However, it seems highly questionable how much law can change established traditions like discrimination against women, colored people, foreigners, or outcasts, or to change habits like the use of the automobile, or to establish a market economy in post-communist countries.

5. Potentials For The Instrumental Use Of The Law

Since the rise of the nation-state, law was employed as one of the major instruments of political power, either criticized as a means of brutal oppression or welcomed as a democratic element in close connection with the rise of the Rechtsstaat or rule of law. More and more areas of social life, from public affairs to intimate relationships, from local issues to global problems, are structured by laws emanating from municipal, regional, federal, international, or supranational legislative bodies. Courts intervene in virtually all social settings. Societies under the Civil Law complain about the ‘juridification of social spheres’ (Habermas 1984, 1987), whereas in the Common Law countries the litigation explosion (Olson 1991, Posner 1985) has become a major issue. These observations have led to a debate of a ‘regulatory crisis’ in Western societies pointing to inflationary use of legal tools, to predominant ineffectiveness of law in reaching its goals, and to wrong perceptions of law’s ‘realm’ in society (Teubner 1992, Rottleuthner 1989).

6. Theoretical Assumptions

Although policy makers and legal scholars tend to assume that law is an effective instrument of social change and that the only relevant debate is about the way the law is modeled, sanctioned, or implemented, social scientists struggle for the best explanation of the extent of behavior in conformity with the law (Fisahn 1999). Hobbes, as the forefather of utilitarianism and in particular of current economic theories of law, emphasized rational choice. Law is instrumentally effective if law-abiding behavior is more beneficial than deviant behavior (Posner 1992). Current sociology is heavily influenced by Durkheim (1964 [1893]) and Parsons (1951) who both explain legal behavior as expressing a value structure shared by all members of society. Legal rules are followed where they are supported by such values and rejected where they are not. The internalization of new normative patterns takes place in accordance with an existing structure of generalized expectations and of specific roles for specific social situations. Equally influential is Weber’s (1954, originally 1913–19) theory of legitimation. In order to guide social behavior, law requires acceptance of charismatic, traditional, or legal authority. In ‘modern’ governmental structures, ‘legality’ prevails as the major legitimation mechanism: legal rules are accepted if formal procedures are followed in the legislative process. This emphasis on ‘formal rationality’ is a dynamic but highly problematic aspect of the law in modern societies. Luhmann (1969) extends this idea to claim that the legitimation of law and legal decisions depends on participation in the decision-making process—rather than the outcome of that process. Potential protest is absorbed by participation as a voter in democratic elections or as a party in a court case.

Subsequently, Luhmann (1995) and Teubner (1993) rejected the very idea of law as a tool. According to an ‘autopoietic’ systems theory, the study of effectiveness of law contracts into a study of legal discourses with those of other social systems. Giddens (1984) modified the prevailing sociological paradigm by explaining society as a reflexive process whose societal structures are less ‘imperialistic’ continuously produced and reproduced by individual actors. Daily routines not only follow existing rules but also create their own normative order. In this view rules are an instrument for achieving social change ‘for everybody’—not only for those in power. Bourdieu (1990) develops similar assumptions about the individual actor as a structured and a structuring element— both being part of the ‘habitus’ which enables the actor relative freedom in a societal ‘field.’ The instrumental power of state law is, according to these ‘postmodern’ social theories, severely limited.

A universally applicable theory of the instrumental use of law is difficult to imagine since law is created in too many forms and is implemented (or not) in a great variety of situations. But further research can lead to situation-specific theories which may help to differentiate between both sociological and legal variations in legal regulation. Examples of research are reported in Daintith (1988) (law as an instrument of economic policy) and Gunningham and Grabosky (1998) (role of law in environmental policy). Each publication emphasizes the importance of a regulatory mix that includes nonlegal instruments as complementary or even dominant devices of policy implementation. Law is a useful and even necessary element in social reform processes, but more radical social changes cannot be accomplished solely by legal means. Economic incentives, structural and institutional support and educational programs are required for successful implementation strategies.

7. Empirical Studies

Measurement of legal regulation is difficult. Traffic signal behavior is observable but the impact of antidiscrimination law is not. Most legal initiatives have some direct effects and many indirect consequences which are hard to imagine and impossible to verify. Welfare laws regulate benefits for the poor but at the same time they have an impact on family structures, on the labor market, on the economy, and on all other goals of public policy which have to share with welfare a common public budget. Even direct effects are difficult to ascertain in complex societies where the new law might respond to a need in one sector and confound the interests of another. Some examples from different countries and legal cultures to show the kinds of information they can deliver:

(a) The impact of Brown vs. Board of Education, a US Supreme Court case decided in 1954, was studied by Rosenberg (1991). The judgment outlawed segregation in elementary and secondary schools which at that time was mandatory in 17 states and allowed in four others. According to Rosenberg’s data, although the use of courts in the civil rights movement was considered the paradigm of a successful strategy for social change, courts had virtually no direct effect on ending discrimination in the field of education. Only when the Civil Rights Act was promulgated in 1964, and the executive branch acted forcefully to implement it, was segregation effectively ended.

(b) Like race discrimination, protection of the environment requires new and creative forms of state regulation. Two studies examine in great detail the regulatory efforts of German and English authorities to prevent pollution of open watercourses. Winter (1975) observed a single case in which a number of legal devices were used over a period of 25 years in order to stop the discharge of waste water into the river Rhein and lake Konstanz by three adjacent factories. The regulatory goals were reached only partially and after considerable delay and public investment. Winter explains this in terms of specific characteristics of German law and also the economic and political interests of the affected actors such as administrative agencies, business units, environmental groups, experts, and the local press. Hawkins (1984) was less interested in legal devices and structural influences on law enforcement than in the interaction processes between administrative bodies and industry. His research on two Water Authorities in England and Wales, based on interviews with field officers and representatives of industrial plants, found a distinctively conciliatory approach. Field staff, instead of initiating formal legal (criminal) proceedings against the polluter, enlist active cooperation. Decisions either to prosecute or to negotiate are made on the officers’ own discretion and his her own moral judgments. Indirect forms of control confer on field staff an authority which, for practical purposes, is in most cases ultimately persuasive.

(c) Independent India embraced equality as a cardinal value against a background of a culturally and religiously established caste system. The programs legislated after independence include compensatory discrimination (preferential treatment) for scheduled classes, scheduled tribes, and other backward castes as well as the opportunity for untouchables to use the courts in civil rights complaints. Galanter (1984, 1989) has evaluated their success. Although preferential treatment for victimized groups was carried out forcefully by a complex system of reservations (granting of educational facilities, sharing of political power), Galanter observes considerable unfairness and negative side effects (not only for the upper strata of Indian society). A detailed study of court cases reveals an ambivalent picture. On the one hand, the High Courts where compensatory discrimination litigation takes place are highly respected and trusted institutions. The proceedings are inexpensive and quick. But litigation is initiated not by the beneficiaries of protective discrimination but by those complaining of schemes which affect their interests. The beneficiaries fail to get the benefits the law seems to promise. One of the reasons is the lack of adequate legal services providing beneficiaries with continuing and skilled support. After half a century of independence, India displays the effects of the limits of law in achieving social change: the gap between the economic opportunities of upper classes and upper castes on the one hand and scheduled classes on the other remains wide.

8. Legal Exports To Defeated, Colonized, De Eloping, And Postcommunist Countries

Historically, law has often been used as an instrument for achieving change in economic and social conditions in foreign countries. Legal exports were part of colonial dominance and of postwar influence on defeated nations. In the 1960s and 1970s a US foundation and government programs attempted to use law to combat underdevelopment. Similar programs have been initiated in the 1990s in post-communist countries by US scholars and also by European institutions. Since the fall of the Berlin Wall, many French, German, and Italian universities have been heavily involved in legal assistance activities; the Netherlands are exporting their new Civil Code to Eastern Europe and the European Community supports legal and educational reform programs in countries interested in becoming members of the European Union.

The assumption is that the setting up of an ‘adequate’ (Western) legal system including legal education and an efficient court structure is a pre- condition for rapid social and economic change. Legal scholars are sent abroad, governments in developing countries employ Western legal experts; sometimes entire law codes are prepared by Western institutions or individuals and promulgated in the target country. Experience shows, however, that success is very limited and that the models have had at most a modest and incremental impact. In Latin America as well as in Eastern Europe, law and development programs proved to be counter-productive, leading to greater class differences, to distorted markets due to monopolistic structures, and to legal cultural rejection of imported models. Some authors talk of legal imperialism and the use of legal assistance as a Trojan colt (Gardner 1980). Oftentimes, the Western models are imported and legislated without the required legal infrastructure such as a well-educated legal profession, an honest and efficient court system, or some simple but necessary institutions like public registers. Positive examples of law and development activities (Japan in the nineteenth century, Germany after World War II, Poland and Hungary after 1990) point to a decisive intermediate factor in the instrumental use of law for development, namely the existence of a strong legal scientific community. Local legal scholars are able to filter foreign imports, adapt them to local needs, and teach the new law in the local cultural context. Since very few developing countries have such a strong academic community, law and development activities usually fail or remain incomplete.

9. Instrumental Use Of State Law

Lawmakers have become aware of the contribution that empirically oriented social scientists can make to improve the instrumental use of law. Implementation and evaluation research accompanies many legislative initiatives. Critical studies in the fields of sociology of law, administrative science, sociology of deviance, and criminology influence regulative measures and judicial behavior. Concerns about the ‘regulatory crisis’ focus on dismantling forms of state intervention or on improvements in regulatory techniques including private ordering. The traditional focus on sanctions as a major resource in the use of law has been largely abandoned in favor of more participative methods. Lawmaking has sometimes been replaced by self-regulation. Increased discretion has been given to administrative bodies as well as to judicial decision making. The overall result is a ‘civil society’ with state law as only one of many mechanisms to achieve social order and welfare. Social regulation takes place ‘in the shadow of the law,’ but it is not monopolized by the law.

10. Law And Global Social Change

The phenomena of globalization seem to support the argument that social change is a social rather than a legal process. Law only follows this change without the ability to take the lead and define the goals. Financial transactions are no longer limited by national borders, mergers of capital tend to monopolize global markets, communication is facilitated by the Internet, and environmental damage is caused on a global scale. The perspectives of law as an instrument of global change are rather somber. Most devices developed on the level of the nation-state for improving the implementation of regulatory law simply do not work on the global level where legislative processes are deficient, common enforcement institutions and procedures are absent, and judicial institutions with global competencies are scarce.

There are legal initiatives which should nevertheless be mentioned. The GATT WTO agreements have changed the conditions for global economic transactions and have created a quasi-judicial institution for handling disputes. In the area of Human Rights, a number of institutions such as the International Criminal Court in the Hague, the European Court of Human Rights in Strasbourg, and the International Labor Organisation in Geneva have been able to make some modest steps toward better protection of the individual. A number of international agreements attempt to prevent cross-border pollution, waste trafficking, global warming, and protect endangered species. Experiences in these fields might in the future provide useful know-how for global regulatory efforts.

Much more problematic are the effects of harmonization of regulatory law. One problem is the ‘race to the bottom’ which leads to regulation on the lowest levels of intervention in order to attract the greatest number of participants. Another problem is caused by differences in the application of harmonized or unified law. Even the EU, with its highly sophisticated regulatory structure, suffers from political or legal-cultural obstacles when EU law is transposed into law of the Member States (Duina 1999).

The globalization of law also takes place in the activities of nongovernmental actors (Gessner 1998, Appelbaum et al. 2001) who create what is called lex mercatoria, who use their own private tribunals for the settlement of cross-border disputes, who make use of international law firms in order to set up new business structures and open new markets, or who draft codes of conduct, for example, concerning child labor or timber from tropical forests. Although expectations are high regarding these nongovernmental activities, few cases are reported where these activities have led to social change in a more narrow understanding—a change that replaces existing social structures and privileges with new ones and defines new priorities.

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