Social Legislation and Social Change Essay.

Discussions of law are often divided between two very different perspectives — what has been called the “external” and “internal” points of view. Prominent Law and Society scholars adopt a similar distinction when they call for an “outside” instead of an “inside” perspective on law. Most law schools (especially during the first year) concentrate on teaching an “inside” perspective, an internal – doctrinal framework as the model for “thinking like a lawyer.” Social Legislation and Social Change Essay.

This internal – doctrinal perspective has some similarity to the “legal formalism” and “conceptualism” that Progressives and Legal Realists had been denouncing since the turn of the century. One of the most important characteristics of the formalism of late nineteenth century Classical Legal Thought was the way in which it represented its closed, internalistic point of view as “neutral, natural and necessary.” The Law and Society movement arose as an extension of Legal Realism’s effort to criticize the dominantly internalistic point of view in Classical Legal Thought for having produced a “heaven of legal concepts” unrelated to the real world. Social Legislation and Social Change Essay.

The Law and Society perspective, like much of Legal Realism, treats law not as a closed system with an internal logic all its own but as the product of various external influences, like power, history and social, economic, and cultural influences. When Holmes proclaimed that “the life of law has not been logic; it has been experience,” he was attacking an exclusively internalistic perspective that produced false certainty by confusing legal reasoning with mathematical or geometrical reasoning. 

Another influence on the Law and Society movement was the Sociological Jurisprudence of Roscoe Pound. Pound had also delivered a powerful critique of late-nineteenth century classical legal thought for having lost touch with society’s needs. Pound distinguished the “law in books” from the “law in action”, and followed Holmes in deploring the increasing separation of the two.Social Legislation and Social Change Essay.

After Holmes, this was the second intellectual seed from which the twentieth century Law and Society movement was spawned. It became the basis for Pound’s own “sociological jurisprudence,” which, in turn, laid the foundation for studying why there has often existed a substantial “lag” or “gap” between social change and legal change . The Brandeis Brief is the most famous application of Pound’s ideas to the actual practice of legal argument . Brandeis and Justice Benjamin Cardozo were the foremost judicial proponents of Pound’s ideas (RED5). Here we should note the convergence between the anthropologists highlighting “cultural lag” and the Progressive followers of sociological jurisprudence who sought to explain “legal lag,” e.g., why law had lost touch with life — why, for example, law had often failed to respond to the shift from an agricultural to an industrial society .The idea of “legal lag” figures prominently in the opinions both in Brown v. Board of Education and the assisted suicide cases.Social Legislation and Social Change Essay.

Finally, Law and Society scholars were influenced by the Realists’ reconceptualization of legal rights . Legal Realists emphasized that the way to determine in practice whether a legal right exists is by studying what remedies the law actually allows. In contract law, for example, the Realists shifted the focus to different theories of damages (e.g., reliance vs. expectancy damages) ₅.

For Lawrence Friedman “The law and society movement is the scholarly enterprise that explains or describes legal phenomena in social terms.” The work of Law and Society falls into a few broad classes:Social Legislation and Social Change Essay.

To begin with, there are studies dealing with the production or shaping of law within a given society: how concrete events, situations, expectations, thoughts, and actions impinge on “Legal” institutions and change their behavior. Where do demands on the legal system come from? What causes them? What forms do they take? Next, there are studies of the operation of the legal system itself, its internal workings, and studies of the transformation process — what happens to raw demands and raw “fact situations” when they get into the hands of legal professionals. Research on judicial decisionmaking has run into something of a dead end; but perhaps this problem is only temporary. There seems to be growing interest in legislative and administrative decisionmaking. There is also a good deal of interest in the legal profession as such. Lawyers, after all, do much of the work of translating lay demands into legal forms.Social Legislation and Social Change Essay.

Then, there is study of the impact of law. This is a difficult area. It includes the problem of communication within the legal system. After all, a norm or order is useless, unless it reaches some audience; if nobody hears the message, no impact is possible. Beyond that is the study of impact itself. This includes the tangled question of deterrence, the effect of rewards and punishments on behavior.Social Legislation and Social Change Essay.

In recent years, there have been literally hundreds of studies and reports on deterrence. The hard questions are still open: who gets deterred, and when, and how much, and why? Everybody concedes, or should concede, that impact is more than a matter of rewards and punishments. People are influenced by social roles; by family, friends, and neighbors; by religion and tradition; by ideas of right and wrong; by a mysterious something called legitimacy. How these feelings and motives arise, and what effect they have on impact, is a difficult, underdeveloped field. Here, too, it is appropriate to study the symbolic and expressive meanings of legal institutions and legal language. These meanings may ultimately affect the behavior of members of society. Finally, there is the study of feedback. Feedback is a specific form of impact; it is the way responses and behaviors curve back and affect the system itself.Social Legislation and Social Change Essay.

In their earlier work, Law and Society scholars followed the reformist goal of the Brandeis Brief in seeking to demonstrate that law needed to be bought back in touch with actual social practice. With the emergence of value-free social science, this perspective slowly blended into efforts to model social science on the natural sciences by discovering universal, scientific laws of society which assumed that law is the dependent variable, society the independent variable. The main emphasis of works premised on such a view was to demonstrate the limited autonomy or independence of law from social practices or structures of hierarchy. Law was regarded as a “mirror” or “reflection” of reality, not terribly different methodologically from some Marxist versions that treat law as derivative “superstructure” reflecting an underlying “base” of economic influences. This approach also meant that existing social practice was being uncritically set up as a norm or baseline . Many scholars incorporated the prevailing functionalism into their work, which had the apologetic effect of legitimating existing social practice on the grounds that it wouldn’t exist if it weren’t performing some legitimate social function  .Social Legislation and Social Change Essay.

Law and Society scholars were much criticized for associating themselves with value-free social science. In the 1970s, Critical Legal scholars challenged the Law and Society thinkers for a) being reductionist for failure to recognize the “relative autonomy of law;” b) engaging in apologetics — e.g., underestimating social conflict and social injustice — through the adoption of a “functionalist” methodology that tended to “explain” or “rationalize” the social function of even unjust and pathological social arrangements

But like the Legal Realists, Law and Society scholars were of two minds on the efficacy of law. During the 1960s and 1970s they engaged in a variety of programmatic or instrumental studies clearly designed to foster or improve activities such as legal services to the poor, welfare and urban renewal. Unlike the “scientists” who saw law as passively responding to social forces, “instrumental” scholars in all of these sub-fields see law as shaping behavior. Just as important, both scientists and instrumental policy scholars enthusiastically endorse the view that law is socially constructed. Lawrence Friedman, one of the founders of the Law and Society movement, maintains that belief in the socially constructed character of legal institutions is one of the central premises of the movement .Social Legislation and Social Change Essay.

Many Law and Society writings provide examples of legal change and evolution. There is changing social custom that produced the “silent” revolution in divorce law. Among the most important subjects involving legal change are the effects of the regulatory, welfare, bureaucratic state on the formation and application of law .Social Legislation and Social Change Essay.

Following the Realist tradition, other studies focus on the operation of law. As part of their efforts to bring the law in books back in touch with society, the Realists engaged in empirical studies of how the law actually worked (or did not work) in practice. It led to famous studies of the inefficiency of civil procedure and the organization of courts. This approach is the direct ancestor of the many fruitful Law and Society studies of Alternative Dispute Resolution as an alternative to formal procedure.Social Legislation and Social Change Essay.

In similar manner, during the 1950s, Law and Society scholars began to undertake studies of informal, or quasi-legal, processes and their effect on law. In one of the most famous Law and Society studies of contract cases, Steward Macaulay found that there was widespread non-use of the formal processes of contract law; that informal customs and understandings often substituted for formal provisions; and that formal sanctions were often replaced by informal dispute resolution .Social Legislation and Social Change Essay.

Likewise, Law and Society scholars have recognized the central role of insurance in the process of torts settlements. One author suggests that the so-called insurance crisis of the mid-1980s was actually determined by the business cycles of liability insurance companies. Others focused on the “gap” between formal or official law and social practices. For example, H. Laurence Ross studied the process of insurance claim adjustment in Torts cases to demonstrate that “legal relationship cannot be understood as a product of formal law alone, but must be understood in terms of the interplay between the formal law and aspects of the situations in which law is applied.”.Social Legislation and Social Change Essay.

Perhaps the most famous example of the interplay between the formal law and informal dispute resolution is Mnookin & Kornhauser, “Bargaining in the Shadow of the Law: the Case of Divorce.” The authors demonstrate the way in which the formal legal rules give one or another party certain “bargaining chips” to shape the outcome of informal processes by threatening to go to court. This is similar to the way plea-bargaining in criminal cases takes place in the shadow of the criminal law; or the way torts settlements take place in the shadow of trials by jury.

The Realists’ external explanations of legal phenomena also looked to the ways in which social causes affect law observance. During the early decades of the century, such studies were especially prominent in the new field of criminology which sought to relate the type and frequency of crime to underlying social causes like poverty, immigration or social disintegrations like the breakdown of the family. Criminologists were also interested in the extent to which law actually shaped social behavior. This led to Impact Studies of the effects of legal rules on behavior. For example, during the campaign against capital punishment in the 1960s,Law and Society scholars engaged in studies to determine whether the death penalty deters murder. 

Even in private law, the new attention to the impact of law led scholars to study how legal rules affect behavior. Law and Society scholars are especially interested in whether legal rules have “penetrated” into public consciousness. For example, Law and Society scholars attempted to study the extent to which psychotherapists actually knew and understood the obligations required under the famous California case of Tarasoff v. Regent of the University of California that imposed certain duties on therapists to warn people threatened by their patients . Here are the questions they asked:Social Legislation and Social Change Essay.

1. Knowledge of Tarasoff
   1. Do therapists know about Tarasoff? (ans.)
   2. From which sources did therapists learn the most about Tarasoff? (ans.)
2. Tarasoff, the Reasonable Therapist and the Dangerous Patient
   3. Do therapists understand when Tarasoff applies? (ans.)
   4. Do therapists believe that they can make meaningful assessments of future violence? (ans.)
   5. Do therapists believe that other professionals would agree with their assessment of dangerousness in a given case? (ans.)Social Legislation and Social Change Essay.
3. Tarasoff, Warnings and Confidentiality
   6. What do therapists believe Tarasoff requires: warning, reasonable care, both or neither? (ans.)
   7. What are the practices of psychotherapists regarding communicating information concerning a patient to third parties? (ans.)
   8. To the extent that therapists do warn third parties, are such warnings made contrary to the therapist’s clinical judgment? (ans.)
4. Tarasoff‘s Impact on Behavior
   9. Do therapists believe themselves either legally or ethically obligated by the Tarasoff principle of responsibility for the physical well-being of potential victims? (ans.)
   10. Has Tarasoff influenced therapists attitudes regarding appropriate interventions in the treatment of potentially violent patients? (ans.)
   11. Has Tarasoff  discouraged therapists from treating potentially dangerous patients? (ans.)
   12. Has Tarasoff influenced therapists to warn potential victims, involuntary hospitalize potentially violent patients, or otherwise attempt to respond to the legal obligation to protect potential victims? (ans.)

While some Law and Society scholars emphasize the failure of law to affect primary behavior, others stress the unintended consequences that followed from changes in legal rules. For example, one study of the Supreme Court’s constitutional criminal procedure cases, including Gideon v. Wainwright and Miranda v. Arizona concludes that given the sociology of criminal courts and the criminal bar, these decisions “may have a long range effect which is radically different from that intended or anticipated.”.Social Legislation and Social Change Essay.

Another study outlines the unintended consequences that flowed from California’s “no fault” reform of its divorce law. Since under the previous regime property was divided between a divorcing couple according to “fault,” the authors of the reform shifted to equal distribution of marital property. One of the unintended consequences of the change: more forced sales of the family home to provide cash for each of the parties. “The result is increased dislocation and disruption in the lives of minor children (in contrast to the old law pattern in which the wife with custody of minor children was typically awarded the family home).” The study more generally seeks to show that the rule of equal property distribution will produce inequity where one of the two spouses is unequally situated at the time of divorce — for example, the older housewife without earning potential.

Finally, some of the best work in recent years has been on the legal profession — its organization, practices and culture. For example, Law and Society scholars have emphasized the mediating role of lawyers and of other legal institutions in maintaining social hierarchy. In one of the most cited Law and Society pieces, Why the “Haves” Come Out Ahead, Marc Galanter identified the structure of legal institutions as decisively affecting outcomes. In particular he distinguished between “repeat players” and “one-shooters” in litigation. “Repeat players” can adapt their settlement or information gathering strategies to the long term process of litigation.

Like all of the social sciences except economics, during the 1980s the Law and Society movement splintered into “positivist” and “hermeneutic” or “interpretive” wings.The positivists, seeking to emulate the models and experimental methods of the natural sciences, insisted that the goal of Law and Society scholars should be to produce universal laws of society modeled on the natural sciences.. By contrast, the interpretivists maintain that it is not possible to have unmediated access to reality; reality must be filtered through socially constructed categories and institutions. Hence, they maintain that it is naive of the scientists to claim that they have direct access to objective truth. The debate between the two groups also expresses an earlier conflict over whether there can be a value-free social science which is able to ignore normative questions of value or prescription in order to concentrate on descriptive studies that can claim the mantle of objectivity. The interpretivists maintain that it is impossible to isolate value questions in the process of creating a research program; that in fact value premises are imbedded in the various paradyms we use to understand the world .Social Legislation and Social Change Essay.

But as the studies explored here show there are ways to reconcile the critical impulse of the interpretivist with the empirical impulse of the positivist. As David Trubek indicates,

A vast number of questions should be explored … How, for example, do the ideas about what is the proper organization of society, encoded in legal beliefs, affect the way the legal profession behaves? How are lawyers’ views of what is possible shaped by legal ideas, and how do these views influence other actors in society? Does the fact that law draws lines between a public and a private sphere influence political struggles? Does the possibility of a legal remedy — or the lack of one — make a difference in the organization and expression of social conflict?Social Legislation and Social Change Essay.

Critical law and society scholars, in short, use the insights of critique in a careful investigation of the operation of legal consciousness at all levels of American society.

Essay on Social Legislation and Social Change – “Laws are a form of social rule emanating from political agencies”. Laws become legislations when they are made and put into force by law-making body or authority. Legislations, particularly social legislations have played an important role in bringing about social change.Social Legislation and Social Change Essay.

There are two opinions about the functions of law. The function of law, according to one view, is to establish and maintain social control. Hence the major problem of law is to design legal sanc­tions to minimise deviance and to maintain social solidarity and social order.Social Legislation and Social Change Essay.

Another view stresses the dynamic role of law. It states that the function of law is not just to maintain social order through social control. It insists that law must bring about social change by influencing people’s behaviour, beliefs and values. We shall now analyse the role of law or legisla­tion in bringing about social change.Social Legislation and Social Change Essay.

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A careful analysis of the role of legislation in social change would reveal two things. (i) Through legislations the state and society try to bring the legal norms in line with the existing social norms, (ii) Legislations are also used to improve social norms on the basis of new legal norms.

Social legislation can be an effective means of social change only when the existing social norm is given a legal sanction. No legislation by itself can substitute one norm with another.Social Legislation and Social Change Essay.

It can hardly change norms. Unaided social legislation can hardly bring about social change. But with the support of the public opinion it can initiate a change in social norm arid thus a change in social behaviour. Some examples of social legislations made in India will help us to understand this point.Social Legislation and Social Change Essay.

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A number of social legislations were made in India both before and after independence with a view to bring about social change. Some of these could achieve success while a few others still remain as dead letters. The legislations that secured public support and the support of social norms could become a great success.Social Legislation and Social Change Essay.

For example, the Hindu Marriage Act was passed in 1955 enforcing monogamy and permitting judicial separation and divorce. Though polygamy was permitted among the Hindus, majority of the people practised monogamy only. Public opinion was in favour of mo­nogamy.

For a long time social reformers agitated that Hindu marriage should be monogamous. The Hindu women also resented the second marriage by a man when the first one was alive. Those who opposed monogamy were branded as conservative, orthodox and selfish. When the Hindu Marriage Act was passed in 1955 it could get the support of the people and the opposition gradually died down.Social Legislation and Social Change Essay.

The Hindu Marriage Act of 1955 could bring about a number of social changes. The Act abolished all caste restrictions as a necessary requirement for marriage. The Hindus of all castes have the same rights with respect to marriage. Intercaste marriages are now allowed.

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The Act pro­vides for a secular outlook with respect to marriage and enables the registration of marriage. It enforces monogamy making both the sexes equal in marital affairs. It provides equal rights for both to get judicial separation and divorce on legal grounds. It treats various sects of people such as Jains, Buddhists, Sikhs, Veera Shaivas, Harijans, Girijans and many others as ‘Hindus’. Thus, it paved the way for bringing about a uniform Civil Code for all the citizens of India.

In the same way, the Hindu Succession Act of 1956 could attain success. The Act confers for the first time absolute rights over the property possessed by a Hindu woman. Both sons and daugh­ters get the right of inheritance of property because of this Act.

The Act removes the prejudice against women getting the property of the father. Since public opinion is in favour of women enjoy­ing equal rights and opportunities, the Act could be enforced easily.Social Legislation and Social Change Essay.

The Hindu Adoption and Maintenance Act of1956 has been a step toward the upliftment of the status of women. It permits the adoption of a son or a daughter. It makes the consent of the wife necessary for adopting a child. It has also given the right to the widows to adopt.

The Legislative Acts mentioned above could bring about changes in some areas of our life because they are backed by public opinion and current social norms and values. Whenever the social norms are ahead of the legal codes, it becomes necessary to bring the legal code into conformity with the prevalent social values.Social Legislation and Social Change Essay.

Sometimes dominant minority groups may cherish some ‘advanced’ values and may bring pressure upon the legislative bodies to make legislations to enforce such val­ues on masses. Such legislations become an active social force only when they are internalised by the people.

In pre-Independent India, social legislations such as — The Hindu Widow Remarriage Act of 1856, Female Infanticide Prevention Act of 1870, the Special Marriage Act of 1872 (which made marriage a civil marriage free from religious barriers), Child Marriage Restraint Act of 1929, etc., could attain success and pave the way for changes in society because they were in tune with the trends and tides of the time.

On the contrary, those social legislations that are far ahead of the social norms and values and those that lack popular support and public opinion are bound to be a failure. They may become only dead letters. Some of them may bring about changes very gradually in the long run. Some others may be simply ignored or even resisted.Social Legislation and Social Change Essay.

The Untouchability Offences Act of1955 was passed by the Parliament in accordance with the provisions of Article 35 of the Indian Constitution. It made the practice of untouchability a cognis­able offence punishable under law. (This Act was, however, substituted by the Protection of Civil Rights Act in 1976).

All the social disabilities from which the Harijans suffered have been removed legally and constitutionally. But in reality, Harijans suffer from many kinds of social disabilities especially in rural areas even today. Here the law is ahead of the social norm particularly in the villages where untouchability is still in practice.Social Legislation and Social Change Essay.

The institutionalisation of this new rule has not affected people’s ways of life. Because the majority of the village people have not yet internalised this norm. It makes clear that passing an Act is not enough to alter the social practice. A social movement educating the public through propaganda is necessary to make effective such social legislations.

Law relating to prohibition was also a grand failure for want of public support. Gandhiji launched a crusade against drunkenness. He even tried to persuade Congressmen to work for total removal of alcoholism. But right from 1937 there has been a strong opposition against prohibition. Not all the Congressmen supported it.Social Legislation and Social Change Essay.

Those who were used to liquor consumption carried on a silent wave against prohibition. All the provinces never legislated laws in favour of prohibition. Some states kept neutral while a few states enacted legislations against taking alcoholic drinks. In such states illicit distillation started as kind of “cottage industry”. Public opinion was not properly mobilised in favour of it. Hence it failed. In America also law relating to prohibition was a grand failure and hence it was withdrawn.Social Legislation and Social Change Essay.

For the same reasons as mentioned above the Hyderabad Beggary Act of1940 passed in order to prevent the beggars from begging, failed. Some other states such as Bengal, Bombay, Karnataka also made legislations for the prevention of beggary.Social Legislation and Social Change Essay.

Nevertheless, beggary continued to be prac­tised by beggars in all these states. In the same way, the Dowry Prohibition Act of 1961 which made the giver as well as receiver of dowry punishable also has become ineffective. The social norms, in other words, have not been affected by this law, and hence the society follows the social norms rather than legal norms in these fields. Mere threat of punishment will not be effective.

Such a situation produces what Festinger calls ‘ forced compliance”. So long as behaviour involves forced compliance, there is no internalisation of the new values and so there will be disobedience of the law. Forced compliance can only create a discrepancy between public behaviour and private belief.Social Legislation and Social Change Essay.

Unintended Consequences of Legislations

As Richard T. Lapiere has pointed out, one of the major tasks of the governments is to produce desired changes through legislative enactments. Hence legislations may be enacted for slum clearance, for providing assistance for the poor to construct low-cost houses, for providing social security to the labourers, handicapped persons, for providing protection to women, children, weaker section, minorities, etc. But sometimes such legislations may produce unintended consequences in society.Social Legislation and Social Change Essay.

For example, the Government of Napoleon in its efforts to keep France agriculturally self- sufficient, established subsidies for the production of sugar beets. No one anticipated or could have anticipated that this legislation would in the course of time help to make France the heaviest per capita consumer of alcoholic beverages in the whole world.Social Legislation and Social Change Essay.

In the same way, legislation in America also brought about an unintended result. The New Deal ideologists wanted to save the small single family agricultural units from the economic crisis of 1930s.

Hence they designed the agricultural parity price system to help such small growers. The ideologists could hardly foresee that the long-run effects of such legislation would be to speed up the growth of large-scale industrial agriculture and to hasten the doom of the small-scale agricultur­ists.

Legislation or any other governmental agency has its own inability to pre-determine the conse­quences of politically sponsored changes. Legislation has its own limitations in inducing significant qualitative changes by coercion.Social Legislation and Social Change Essay.

Of course, men may be deterred by coercion from doing something that they might like to do. They may be encouraged by the government to work at their trade, pursue their scientific investigations, treat sick patients, etc.

People cannot, however, in the same ways be induced either to want to be creative or to act for long in ways that are contrary to their established cultural attributes. It is for this reason the govern­mental efforts to increase national birth-rates through legal means having failed. Its efforts to establish racial equality through legislation have failed.

Similarly, no legislation can be made to make a people religious or to deprive them of an established religion; to change their sex morals, to improve domes­tic harmony, to substitute one custom with another, and so on.

Legislations can be made by govern­ments to sanction changes that have already occurred. In fact, in the long run, legislations are made for sanctioning changes. But legislations cannot be made in the social field directly. They cannot fix the course of social changes in a predetermined fashion.Social Legislation and Social Change Essay.