Law, Justice, and Society:
A Sociolegal Introduction
Chapter 11
The Law and Social Change
The Law and Social Change
What is Social Change?
 any relatively enduring alteration in social
relationships, behavior patterns, values,
norms, and attitudes occurring over time
The Law and Social Change
Law as a Cause of Social Change
law is mostly reactive
law can be an independent source of
change
The Law and Social Change
Law as a Cause of Social Change (cont.)
two views:
conservative:
active use of law to generate social change is
wrong
law must be a natural extension of social
custom
The Law and Social Change
Law as a Cause of Social Change (cont.)
other view: too many customs in the
United States for the law to be based on
only one
law is instead based on a general,
abstract, universalistic principle of justice
The Law and Social Change
Reciprocal Relationship Between Social
Change and Law
changes in law give rise to changes in
social customs
changes in social customs give rise to
changes in law
law is facilitative rather than causative of
social change
The Law and Social Change
Typical Role of Law in Social Change
Social
Demands:
Racial
segregation is
wrong
Business
should be
regulated
Alcohol use
causes crime
4th Amendment
rights need protecting
Legislatures
Courts
Legislative
Acts/Judicial
Decisions:
Civil Rights Acts
18th Amendment
(Prohibition)
Sherman
Anti-trust Act
Exclusionary rule
The Law and Social Change
Social Movements, the Law, and Social Change
 most often facilitative rather than causative
 social movement (Tilly, 1984, p. 306): “a sustained
series of interactions between powerholders and
persons successfully claiming to speak on behalf of
a constituency lacking formal representation in the
course of which those persons make publicly visible
demands for changes in the distribution or exercise
of power, and back those demand with public
demonstrations of support”
The Law and Social Change
Social Movements, the Law, and Social Change
Cont’d
politics of social movements depend on
democracy
before a judiciary interpreted the Constitution,
social movements were unlikely to go anywhere
without violence
contagion effect- arousal of previously silent
groups once a social movement is observed
successfully making its rights claim
The Law and Social Change
Examples of the Role of Law in Social Movements:
worker’s rights
rights of gays and lesbians
abortion rights
women's rights
minority and racial/ethnic rights
The Law and Social Change
British Law and the American Revolution
British laws after the French and Indian Wars
were designed to force colonialists to pay their
share of the war expense
both statute and case law supported this
Americans considered the revolution a legal
declaration of divorce based on the British
constitution, specially that King George III had
overstepped his authority
The Law and Social Change
Law and Social Engineering in USSR
pre-USSR law suppressed social change
and retarded social progress
USSR used the law to force social change
the Soviet flip-flop on the "bourgeois family"
law coupled with police tactics can result
in social change
law based on custom is more efficient
The Law and Social Change
The U.S. Supreme Court and Social Change
Rosenberg’s (1991) two views of the USSC’s
ability to induce social change
 dynamic view
 constrained view
The Law and Social Change
The Dynamic View
the Court can be more effective than
other government institutions in bringing
about social change
this is because it is free of election
concerns
The Law and Social Change
The Constrained View
 the Court can rarely produce significant
social change due to three constraints:
 bounded nature of constitutional rights
 lacks the necessary independence from
the other branches of government
 lacks the tools to develop policies and
implement decisions
The Law and Social Change
USSC has created little social change
unless all three of these oppositions have
not been present
however, dynamism can exist when
coupled with the USSC’s main resource:
legitimacy
The Law and Social Change
The USSC and Legitimacy
the ability to command compliance with
rules despite lacking means to compel
Weber’s three types:
1.
2.
3.
Traditional
Charismatic
Rational-legal
Supreme Court enjoys all of these
The Law and Social Change
Strict Constructionists
justices who believe that the Court’s task
is to take the Constitution in light of its
Framers’ original intent
what effect would such justices have on
social change?
The Law and Social Change
Judicial Activism
judicial governance: violation of the
constitutional separation of powers
The Law and Social Change
USSC’s Role in Maintaining the Status Quo
extreme concentration of wealth leads to
de facto plutocracy functioning beneath
the "official" government
U.S. Constitution is an economic
document that favors moneyed business
class
The Law and Social Change
USSC’s Role in Maintaining the Status Quo
(cont.)
Fourteenth Amendment
created to protect the most deprived
members of our society
USSC used it to protect rich business
interests against working-class interests
later used it according to its "original intent"
The Law and Social Change
USSC’s Role in Inducing Social Change
USSC expanded the federal government’s
power
acted as a "nation builder"
created a "national identity"
The Law and Social Change
USSC’s Role in Inducing Social Change (cont.)
Marshall Court: molding a national identity
Taney Court: state’s rights take precedence
Warren and Burger Courts: the "due process
revolution"
these decisions have become institutionalized and
accepted
especially among younger generation