Chapter 7 updated

Chapter 7 Law and Social Change LAW AND SOCIETY, 11/E by Steven Vago and Steven Barkan Outline Reciprocity Between Law and Social Change Social Changes as Causes of Legal Changes Law as an Instrument of Social Change Indirect and Direct Effects of Law on Social Change The Efficacy of Law as an Instrument of Social Change Additional Considerations Regarding Law’s Effect on Social Change Outline Advantages of Law in Creating Social Change Legitimate Authority The Binding Force of Law Sanctions Limitations of Law in Creating Social Change Elites and Conflicting Interests Law as Only One of Many Policy Instruments Outline Resistance to Change Social Factors Psychological Factors Cultural Factors Economic Factors Summary Law and Social Change What is “social change”? Product of many factors Interrelationship between those factors Reciprocity Between Law and Social Change Conflict – can and should law lead changes in society, or follow changes in society? Jeremy Bentham – legal reforms should respond to social needs and restructure society Friedrich Karl von Savigny – customs should form basis of legal change Reciprocity Between Law and Social Change Two contrasting views: 1. Law is determined by a sense of justice and the moral sentiments of the population, and legislation can achieve results only by staying relatively close to prevailing social norms 2. Law, and especially legislation, is a vehicle through which a programmed social evolution can be brought about Reciprocity Between Law and Social Change The question is not: Does law change society? Does social change alter law? The question is: Under what specific circumstances law can bring about social change, at what level, and to what extent, and vice versa? Social Changes as Causes of Legal Changes Historically, social change has been slow enough to make custom the principal source of law Today, change is faster Social Changes as Causes of Legal Changes Modern society lived through several revolutions Demography, urbanization, bureaucratization, industrialization, science, transportation, agriculture, communication, biomedical research, education, and civil rights Social Changes as Causes of Legal Changes Technology New crime-detection techniques Fingerprint DNA Polygraph Application of law Televised hearings Substantive changes Presenting new problems and new conditions—ex. Internet/Facebook: Cyberbullying Social Changes as Causes of Legal Changes Cybercrime: unleashing of viruses, worms and other rogue programs to disrupt and/or steal information. Legislation to protect privacy Created new types of methods to commit Credit theft Identity theft Social Changes as Causes of Legal Changes Alterations in social conditions may induce legal change Technology Knowledge Values Attitudes Law as an Instrument of Social Change Historically, laws have been used to deliberately force social change Law is epiphenomenon of bourgeois class society Spain 1930s – law used to reform agrarian and employment relations Nazi Germany – law of socialization creates a socialist society Communist China—elimination of Western vices; moderation of population growth Law as an Instrument of Social Change In present-day societies, law and litigation are important instruments of social change Education – Labor Race relations – Immigration Housing – Crime prevention Transportation – Alleviation of poverty Environment Law as an Instrument of Social Change United States Law used to improve race relations Racial caste system 1964 Civil Rights Act 1965 Voting Rights Act Law as an Instrument of Social Change Eastern-bloc countries post-WWII Law changed society from bourgeois to socialist country Development of socialist mode of economic production, distribution, and consumption These changes then influence values, beliefs, socialization patterns, and structure of relationships Law as an Instrument of Social Change Indirect - Law plays an important indirect role in social change by shaping various social institutions, which in turn have a direct impact on society Direct – law interacts directly with basic social institutions, constituting a direct relationship between law and social change Law as an Instrument of Social Change Different perspective on law in social change Planning – refers to architectural construction of new forms of social order and social interaction Disruption – refers to the blocking or amelioration of existing social forms and relations Law as an Instrument of Social Change Ways of considering the role of law in social change Indirect Direct Additional Considerations Regarding Law’s Effect on Social Change Law can redefine the normative order or create new procedural opportunities within the legal apparatus. Additional Considerations Regarding Law’s Effect on Social Change As an instrument of social change, law entails two interrelated processes: Institutionalization of patterns of behavior – refers to the establishment of a norm with provisions for its enforcement Internalization of patterns of behavior – means the incorporation of the value or values implicit in the law The Efficacy of Law as an Instrument of Social Change Conditions which influence if law provides impetus for social change: Law must emanate from an authoritative and prestigious source Law must be rational, understandable, and compatible with existing values Advocates of the change should reference other similar communities or countries where the law is in effect The Efficacy of Law as an Instrument of Social Change Conditions which influence if law provides impetus for social change: Enforcement of law aims at making change in short amount of time Those enforcing the law must be committed to change Instrumentation of law should provide positive and negative sanctions Enforcement of the law should be reasonable Advantages of Law in Creating Social Change Legitimate authority Max Weber’s “ideal motives” Three types of legitimate authority: Traditional Charismatic Rational-legal Advantages of Law in Creating Social Change Traditional authority Established belief in the sanctity of tradition Recognizes the status of those exercising power Obedience comes from personal loyalty “Rule of elders” Advantages of Law in Creating Social Change Charismatic authority Devotion to specific and unusual sanctity, heroism, or exemplary character of an individual Normative patterns that are revealed or ordained Obeyed by personal trust in his or her revelation of qualities Moses, Christ, Mohammed, Ghandi, Charles Manson, Jim Jones Advantages of Law in Creating Social Change Rational-legal authority Belief in the legality of normative rules Belief in the right of those elevated to authority to issue commands under such rules Obedience through virtue of the formal legality of the commands Authority of the office The Binding Force of Law Numerous reasons law is binding: Assertions that laws are ordained by nature Belief that law results from the consensus of its subjects to be bound Content of the law is to obey command The Binding Force of Law Numerous reasons law is binding: Law against morality often obeyed Nazi Germany Milgram People like order Sanctions Sanctions among the primary reasons law is binding Related to legal efficacy Provided to guarantee obedience Enforce behavior Sanctions Laws consistent with the social order generally don’t need the threat of sanction Types of sanctions vary with purpose and goal of law Proscriptive – usually only negative sanctions Positive policy – negative sanctions and positive rewards Limitations of Law in Creating Social Change For the majority of individuals, law originates externally to them and is imposed upon them in a coercive manner Conflicting interests arise out of scarcity Limitations of Law in Creating Social Change Ethics and Conflicting Interests Conflict of interest creates framework in which laws are framed and change is brought about Context of the organization of power and the processes by which interests are established in everyday social life Limitations of Law in Creating Social Change Law as one of many policy instruments Dror Law itself is only one component of a large set of policy instruments and usually cannot and is not used by itself Focusing only on law as a tool of directed social change is a case of tunnel vision Considerations stemming from reform litigation. Limitations of Law in Creating Social Change Morality and values Society owes its existence less to its institutions than to the shared morality that binds it together Law given support of society through values and morality Sexual abuse Drug use Limitations of Law in Creating Social Change Morality and values Two questions: What needs to be done in considering a change in law when moral opinion is divided? How can the line be drawn between that part morality or immorality which needs legal enforcement? Limitations of Law in Creating Social Change Morality and values Two points of view: Law is limited to regulation of individual behavior, and cannot be used to alter attitudes, values, and morality Or law can alter values and attitudes Resistance to Change Efficacy of law is further hindered by a variety of forces Tendencies to ward off change that directly or indirectly have an effect in law as an instrument of social change Resistance to Change Social factors Vested interests Social class Ideological resistance Organized opposition Resistance to Change Psychological factors Habit Motivation Ignorance Selective perception Moral development Resistance to Change Cultural factors Fatalism Ethnocentrism Incompatibility Superstition Resistance to Change Economic factors Perhaps most decisive Law has a cost Method of cost benefit analysis Limited resources