Law, Justice, and Society: A Sociolegal Introduction Chapter 11 The Law and Social Change.
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Transcript of Law, Justice, and Society: A Sociolegal Introduction Chapter 11 The Law and Social Change.
Law, Justice, and Society:A Sociolegal Introduction
Chapter 11The 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 Changelaw is mostly reactivelaw 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
Alcohol use causes crime
4th Amendment rights need protecting
LegislaturesCourts
Civil Rights Acts 18th Amendment (Prohibition)
Exclusionary rule
Racial segregation is
wrong
Business should be regulated
Sherman Anti-trust Act
Typical Role of Law in Social Change
Social Demands:
Legislative Acts/Judicial Decisions:
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 rightsrights of gays and lesbiansabortion rightswomen's rightsminority and racial/ethnic rights
The Law and Social Change
British Law and the American RevolutionBritish 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 thisAmericans 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 USSRpre-USSR law suppressed social change
and retarded social progressUSSR 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 Viewthe 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 Legitimacythe ability to command compliance
with rules despite lacking means to compel
Weber’s three types: 1. Traditional 2. Charismatic 3. Rational-legal
Supreme Court enjoys all of these
The Law and Social Change
Strict Constructionistsjustices 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 Activismjudicial 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 ChangeUSSC expanded the federal
government’s poweracted 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
