Law and society steven barkan

168

C H A P T E R 6

Law and Social Change

O ne of this decade’s most heatedsocial debates has concerned same-sex marriage. States throughout the nation passed constitutional amendments that banned same-sex marriages; the state supreme court of Massachusetts ruled in 2004 that its state constitution permitted same-sex marriage; and, taking a middle ground, several states (California, Connecti- cut, Hawaii, Maine, New Hampshire, New Jersey, and Vermont) enacted legislation that gave civil unions or domestic partnerships between same-sex couples many or all of the legal protections enjoyed by marriages between heterosexual couples. Hundreds of gay couples married in Massachusetts after same-sex marriage became legal there, and many other couples filed for civil union or domestic partnership status in the states that granted this status new rights. The legal developments regarding same-sex marriage and civil unions were themselves a result of attention given to gays and lesbians during the last few decades, much of it resulting from their own efforts to do away with homophobia and antigay discrimination.

This brief summary does not do the same-sex marriage issue justice, but it does indicate the interplay between law and social change. Changes in society can bring about changes in law, broadly defined, and changes in law can bring about changes in society. The relationship between law and social change has been a key dimension of the study of law and society since the rise of

Chapter Outline

The Impact of Social Change on Law: Law as Dependent Variable

–Social Change and Fundamental Legal Change

–Social Change and Specific Legal Developments

The Impact of Law on Social Change: Law as Independent Variable

–Aspects of the Law → Social Change Relationship

–The Limits of Law as a Social Change Vehicle

–Problems in Assessing Legal Impact

–Conditions That Maximize the Potential Impact of Legal Change

Law and Social Movements

–Use of Law by Social Movements

–Use of Law Against Social Movements

Summary Key Terms

IS B

N 0

-5 5

8 -8

6 0

1 4

-1

Law and Society: An Introduction, by Steven E. Barkan. Published by Prentice Hall. Copyright © 2009 by Pearson Education, Inc.

Chapter 6 • Law and Social Change 169

the Historical School (see Chapter 2) during the nineteenth century. As Chapter 1 emphasized, the idea that society can affect law and that law can affect society is a basic premise of the field of law and society today. As dis- cussed in that chapter, several key assumptions guide theory and research in the field. Two of these were that major changes in society often bring about changes in the law, and that laws and legal decisions may have a potential impact on one or more aspects of society.

As should be apparent, then, the existence of a two-way or reciprocal relationship between law and social change is a defining component of the law and society canon. Friedman (2004a) likens this reciprocal relationship to the process and aftermath of building a bridge. Suppose there is a commu- nity, he says, on the banks of a wide river that is serviced only by a slow ferry. The residents put pressure on their government to build a bridge, and the bridge eventually gets built. Now that traffic easily goes across the bridge everyday, the community begins to change. Some people begin to live on the other side of the river, and more people, whichever side they live on, begin to commute to jobs on the other side. The ferry stops operating, and the bridge becomes so dominant a feature of the residents’ existence that it “affects their behavior, their way of thinking, their expectations, their way of life” (p. 16). It becomes difficult for them to even imagine life before the bridge was built. The bridge, Freidman observes, is a metaphor for law and the legal system. The bridge was built because of social forces and social change—in this case citizen pressure on government—and, once built, “it began to exert an influence on behavior and attitudes” (p. 16). Similarly, law may change because of changes and pressures in the larger society, and, once it does change, it then begins to influence behavior and attitudes. Thus, although this chapter discusses the influence of social change on law and that of law on social change separately, the reciprocal relationship suggested by the bridge metaphor should be kept in mind.

Before moving on, it will be useful to introduce some social science jar- gon with which many readers may already be familiar. In a potentially causal relationship between two variables (e.g., race affects income), the independent variable is something that affects or influences a dependent variable, and the dependent variable is something that is affected or influ- enced by an independent variable. In the race and income relationship, race is the independent variable and income is the dependent variable. These two terms are often used in discussing the relationship between law and social change. Thus, when we say that changes in society may bring about changes in law, we are treating social change as the independent variable and legal change as the dependent variable. On the other hand, when we say that changes in law may bring about changes in society, we are treating legal change as the independent variable and social change as the dependent variable.

This chapter reviews the large variety of work on law and social change. We start by looking at the impact of changes in society on changes in law and then examine the impact of changes in law on changes in society.

IS B

N 0

-5 5

8 -8

6 0

1 4

-1

Law and Society: An Introduction, by Steven E. Barkan. Published by Prentice Hall. Copyright © 2009 by Pearson Education, Inc.

170 Chapter 6 • Law and Social Change

The final section discusses law and social movements, an emerging subfield within the larger law and social change rubric that is attracting increasing attention from scholars of law and society and of social movements.

THE IMPACT OF SOCIAL CHANGE ON LAW: LAW AS DEPENDENT VARIABLE

Literature on the impact of social change on legal change falls into two broad types based on the scope of the changes involved. The first type is in the tra- dition of “grand theory” and examines how and why broad social changes produce far-reaching changes in the nature of a legal system, legal reasoning, and other fundamental dimensions of law. The second type has a somewhat more narrow focus, as it examines how and why certain social changes pro- duce new legislation, new court rulings, new legal procedures, or other rather specific aspects of law. We will discuss both types of impact in this section.

Social Change and Fundamental Legal Change

The model for the first type, on the impact of broad social change on funda- mental legal change, comes from the Historical School (see Chapter 2). Although the different theorists who made up this school took very different approaches, all were concerned with a basic social science question: how and why did law change as society became more modern (Cotterrell 2004)?

One of the Historical School’s figures, English professor Sir Henry Maine (1822–1888), answered this question in his influential book Ancient Law (Maine 1864), in which he explored the evolution of law from ancient times to modern (nineteenth century) times. Recall from Chapter 2 that Maine is famous for his view that law changed from status to contract. In older societies, relationships were governed by power (or status) based on the relative social standing of the individuals in the relationship. The most extreme of relationships in terms of power differences was slavery. Over time, these traditional power-based rela- tionships were replaced by agreements that were more voluntary and increas- ingly based on verbal and then written contracts. For Maine, then, a key dimension of modernization involved the rise of contractual relationships based on the voluntary agreement of the individuals in the relationship.

Other members of the Historical School included the three key founders of sociology whose work was briefly introduced in Chapter 2: Durkheim, Weber, and Marx (with collaborator Engels). Because their work on the impact of social change on law is so historically important and is still influential more than a century later, we examine it here in some detail.

Emile Durkheim: The Rise of Restitutive Law. French scholar Emile Durkheim (1858–1917) developed several themes that continue to resonate in social science theory and research today. Our discussion here is limited to the aspects of his work that are relevant for law and social change.

IS B

N 0

-5 5

8 -8

6 0

1 4

-1

Law and Society: An Introduction, by Steven E. Barkan. Published by Prentice Hall. Copyright © 2009 by Pearson Education, Inc.

Chapter 6 • Law and Social Change 171

Like several other scholars of his time, Durkheim sought to under- stand how modern (i.e., nineteenth-century) societies differed from the tradi- tional societies characteristic of ancient times and still found today in many parts of the world studied by anthropologists. He wrote extensively about the social bonds that characterize both types of societies and spelled out his argument in his influential 1893 book, The Division of Labor in Society (Durkheim 1933 [1893]). In small, traditional societies, he wrote, people are very similar to each other in thought and deed, and these societies are said to be homogeneous. Social order in these societies arises from this similarity and homogeneity. Durkheim called this type of social order mechanical sol- idarity. Larger, modern societies obviously differ in many ways from their traditional counterparts. For Durkheim, a key difference was that modern societies are more heterogeneous, as people are more different from each other in their beliefs, values, and behaviors. Social order is, thus, more difficult to attain and maintain, said Durkheim, but is still possible because people have to depend on each other for the society to work. Durkheim called this type of social order organic solidarity and said it arises from the interdependence of roles that is a hallmark of modern society. This interdependence, he said, cre- ates a solidarity that retains much of the bonding and sense of community found in traditional societies.

According to Durkheim, these two types of solidarity in turn affect the type of law a society has. In traditional societies, a deviant or criminal act offends the collective conscience, Durkheim’s term for a society’s belief and value system. Because the collective conscience in traditional societies is so strong (since people have similar thoughts and values), the response to deviance in such societies is especially punitive, as people react emotionally to an act that offends them. The type of law found in these societies, said Durkheim, was repressive, and he coined the term repressive law to charac- terize law in traditional societies. In modern societies, the collective con- science is weaker because people have different beliefs and values. Their response to deviant and criminal acts is thus less punitive and in fact takes the form of restitution, as it involves compensating an injured or aggrieved party for the harm done to them. Durkheim used the term restitutive law to characterize law in modern societies.

Durkheim’s connection of the type of law found in a society to the nature and extent of social bonds it exhibits, and thus to its level of modern- ization, was a key insight for early law and society thinking and continues to have historical importance for the study of law and social change. Unfortu- nately, later scholarship (remember that Durkheim presented his argument in 1893, long before the advent of modern anthropological research) indi- cated that Durkheim may have misinterpreted the relationship between type of society and type of law. An oft-cited study by Richard Schwartz and James C. Miller (1964) used data on fifty-one societies that had been studied by anthropologists. This data set allowed Schwartz and Miller to determine whether each society had one or more of the following features of relatively

IS B

N 0

-5 5

8 -8

6 0

1 4

-1

Law and Society: An Introduction, by Steven E. Barkan. Published by Prentice Hall. Copyright © 2009 by Pearson Education, Inc.

172 Chapter 6 • Law and Social Change

modern legal systems: counsel, mediation, and police. Of these, police corre- sponds most closely to what Durkheim meant by repressive law, and media- tion corresponds most closely to what he meant by restitutive law.

After determining the pattern of features that characterized each soci- ety, Schwartz and Miller noted how modern the societies were in other respects, for example, whether they had a division of labor (role specializa- tion) and/or money. They then determined that police, as a proxy for repres- sive law, tended to be found only in the most modern societies, the opposite of what Durkheim argued, while mediation, as a proxy for restitutive law, was found in many traditional, premodern societies, again the opposite of what Durkheim argued. This finding led the authors to conclude, “[T]hese findings seem directly contradictory to Durkheim’s major thesis. . . . Thus Durkheim’s hypothesis seems the reverse of the empirical situation in the range of societies studied here” (p. 166).

Although Schwartz and Miller’s study suggested that Durkheim may have reversed the relationship between modernity and type of law, a decade later another scholar challenged their refutation of Durkheim’s hypothesis. Upendra Baxi (1974) argued that Schwartz and Miller erred in using the pres- ence of police as a measure of repressive law because the presence of police by definition requires the existence of role specialization. Measured this way, repressive law could only be found in modern societies. For this reason, Baxi argued, the earlier two authors unwittingly “virtually insure that their counter-thesis is correct” (p. 647), because in simple societies that have no role specialization, police could hardly be expected to be found. Although Baxi did not mention it, his argument suggests that the use of a different measure of repressive law, such as whipping or other physical punishment, would have constituted a more appropriate test of Durkheim’s hypothesis.

Although Baxi made a valid point, most scholars do think that Durkheim misinterpreted the modernity and law relationship. Although the old Tarzan movies and any number of other films and books have depicted traditional societies as savage in the way Durkheim envisioned, many traditional societies studied by anthropologists in fact rely on restitution to settle disputes and deal with their members who violate social norms (see Chapter 4). By the same token, many modern societies are very punitive in their approach to law. Although physical punishment is no longer used to bring criminals to justice, their incarceration is obviously much more punitive than restitutive, and the death penalty is still used in the United States. Although Durkheim may have misconstrued the law-modernization relationship, his thesis remains valuable for stimulating scholarship on law on social change and more generally on the idea that law reflects a society’s beliefs, values, and social structure.

Max Weber: The Rise of Rational Law. Like Durkheim, German scholar Max Weber (1864–1920) developed many themes that continue to influence socio- logical theory and research. Our discussion focuses on the aspects of his work relevant for an understanding of law and social change.

IS B

N 0

-5 5

8 -8

6 0

1 4

-1

Law and Society: An Introduction, by Steven E. Barkan. Published by Prentice Hall. Copyright © 2009 by Pearson Education, Inc.

Chapter 6 • Law and Social Change 173

Weber (1978 [1921]) recognized that as societies become more modern and complex, their procedures for accomplishing tasks rely less on tradi- tional customs and beliefs and more on rational (which is to say rule-guided, logical, and impersonal) methods of decision making in which the means have a reasonable connection to the ends and vice versa. The development of rational thinking, he said, allowed complex societies to accomplish their tasks in the most efficient way possible. For Weber, then, the key hallmark of modern society is the development of rationality.

Weber used the concept of rationality to understand how societies changed legally as they became more modern and complex. One major change involves the type of power characteristic of a society. In many tradi- tional societies, he wrote, the major type of power is traditional authority. As its name implies, traditional authority is power that is rooted in tradi- tional, or long-standing, beliefs and practices of a society. It exists and is assigned to particular individuals because of that society’s customs and tra- ditions. Individuals enjoy traditional authority for at least one of two rea- sons. The first is inheritance, as certain individuals are granted traditional authority because they are the children or other relatives of people who already exercise traditional authority. The second reason individuals enjoy traditional authority is more religious: their societies believe they are anointed by God or the gods, depending on the society’s religious beliefs, to lead their society. Traditional authority is most common in preindustrial societies, in which tradition and custom are so important, but it continues to exist in some modern monarchies where a king or queen enjoys power because he or she comes from a royal family.

An important aspect of traditional authority is that it is granted to indi- viduals regardless of their qualifications. They do not need any special skills to receive and wield their authority, as their claim to it is based solely on their bloodline or divine designation. An individual granted traditional authority can be intelligent or dull, fair or arbitrary, and exciting or boring, but the individual receives the authority just the same because of custom and tradition. As not all individuals granted traditional authority are partic- ularly well qualified to use it, societies governed by traditional authority sometimes find that individuals bestowed it are not always the best leaders.

If traditional authority derives from custom and tradition, rational- legal authority, a second type of power, derives from law and is based on a belief in the legitimacy of a society’s laws and rules and in the right of lead- ers to acting under these rules to make decisions and set policy. It is a hall- mark of modern democracies, in which power is given to people elected by voters and the rules for wielding that power are usually set forth in a consti- tution, charter, or other written document. Whereas traditional authority resides in an individual because of inheritance or divine designation, rational-legal authority resides in the office that an individual fills, not in the individual per se. Thus, the authority of the president of the United States resides in the office of the Presidency, not in the individual who happens to

IS B

N 0

-5 5

8 -8

6 0

1 4

-1

Law and Society: An Introduction, by Steven E. Barkan. Published by Prentice Hall. Copyright © 2009 by Pearson Education, Inc.

174 Chapter 6 • Law and Social Change

be president. When that individual leaves office, authority transfers to the next president. This transfer is usually smooth and stable, and one of the marvels of democracy is that officeholders are replaced in elections without revolutions having to be necessary. Even if we did not voted for the person who wins the Presidency, we accept that person’s authority as our president after the electoral transition occurs.

Rational-legal authority even helps ensure an orderly transfer of power in a time of crisis. When John F. Kennedy was assassinated in 1963, Vice Pres- ident Lyndon Johnson was immediately sworn in as the next president. When Richard Nixon resigned his office in disgrace in 1974 because of his involvement in the Watergate scandal, Vice President Gerald Ford (who him- self had become Vice President after Spiro Agnew resigned because of finan- cial corruption) became president. Because the U.S. Constitution provided for the transfer of power when the Presidency was vacant and because U.S. leaders and members of the public accept the authority of the Constitution on such matters, the transfer of power in 1963 and 1974 was relatively smooth and orderly.

A third type of power discussed by Weber is charismatic authority, which stems from an individual’s extraordinary personal qualities and from that individual’s hold over followers because of these qualities. Such charis- matic individuals may exercise authority over a whole society or only over a specific group within a larger society. They can exercise authority for good and for bad, as this brief list of charismatic leaders indicates: Joan of Arc, Adolf Hitler, Mahatma Gandhi, Martin Luther King, Jr., Jesus Christ, Prophet Muhammad, and Buddha. Each of these individuals had extraordi- nary personal qualities that led their followers to admire them and to follow their orders or requests for action. Weber emphasized that charismatic authority is often less stable than either traditional authority or rational-legal authority. The reason for this is simple: Once a charismatic leader dies, the leader’s authority dies as well. Although the leader’s example may continue to inspire people, it is difficult for another leader to come along and com- mand people’s devotion as intensely. After the deaths of Joan of Arc and the other charismatic leaders just named, no one came close to replacing them in the hearts and minds of their followers.

Charismatic authority can reside in a person who came to a position of leadership because of traditional or rational-legal authority. Over the cen- turies, several kings and queens of England and other European nations were charismatic individuals as well (while some were far from charismatic). A few U.S. Presidents—Washington, Lincoln, both Roosevelts, Kennedy, Rea- gan, and, despite his affair with an intern, Bill Clinton—also were charismatic, and much of their popularity stemmed from various personal qualities that attracted the public and sometimes even the press. Ronald Reagan, for exam- ple, was often called the “Teflon President,” because he was so loved by much of the public that accusations of ineptitude or malfeasance simply rubbed off him (Lanoue 1988).

IS B

N 0

-5 5

8 -8

6 0

1 4

-1

Law and Society: An Introduction, by Steven E. Barkan. Published by Prentice Hall. Copyright © 2009 by Pearson Education, Inc.

Chapter 6 • Law and Social Change 175

Weber’s emphasis on the rise of rationality and more specifically on the development of rational-legal authority in modern society was a major con- tribution to the understanding of law and society. Weber, in fact, used the development of law to illustrate the development of rationality. He wrote that legal procedures can be either rational or irrational, with the former char- acterizing modern societies and the latter characterizing traditional societies. Rational legal procedures involve the use of logic and reason to reach legal decisions and achieve other goals, while irrational legal procedures are based on magic or faith in the supernatural, including religion. In another distinction, legal procedures can also be formal or substantive. Formal in this context means that legal decisions are based on established rules, regardless of whether the outcome of a decision is fair or unfair. Substantive means that a legal decision takes account of the circumstances of individual cases in order to help ensure a fair outcome.

Weber said that law has become both more rational and more formal over time. Thus, most modern legal systems are characterized by formal rationality: Legal decisions are based on logic and do not consider whether their outcomes are fair or unfair, only whether the outcome makes sense in view of the facts and other circumstances of a case. This type of law, of course, creates the tension (see Chapter 1) that sometimes occurs between logical decision-making and justice and fairness. As the case in Chapter 1 involving misdiagnosis of brain cancer made clear, some decisions make absolute sense in view of the law governing a case and the facts involved in a case but at the same time yield outcomes that many of us would consider unjust, unfair, or at least unfortunate.

Karl Marx and Friedrich Engels: Law as Domination. Karl Marx (1818–1883) was a founder of sociology, but he was also a towering figure in the history of social and political thought. He and his frequent collaborator Friedrich Engels (1820–1895) left a body of written work that has influenced the course of history and also the development of sociology, political science, econom- ics, and other disciplines.

In understanding the modernization of society, Marx and Engels’ chief concern was the rise of capitalism as societies’ economies evolved from ones that were based on agriculture to ones that were based on industry. Accord- ing to Marx and Engels, every capitalist society is divided into two classes based on the ownership of the means of production—tools, factories, and the like. In a capitalist society, the bourgeoisie or ruling class owns the means of production, while the proletariat or working class, the other class, does not own the means of production and instead is oppressed and exploited by the bourgeoisie. This difference creates an automatic conflict of interests between the two groups. Simply put, the bourgeoisie is interested in maintaining its position at the top of society, while the proletariat’s inter- est lies in rising up from the bottom and overthrowing the bourgeoisie to cre- ate an egalitarian society. As many readers may know, Marx and Engels

IS B

N 0

-5 5

8 -8

6 0

1 4

-1

Law and Society: An Introduction, by Steven E. Barkan. Published by Prentice Hall. Copyright © 2009 by Pearson Education, Inc.

176 Chapter 6 • Law and Social Change

thought that the effort of the bourgeoisie to maintain its top position involved the oppression of the working class.

How did law fit into Marx and Engels’ thinking? Although law was not one of their chief concerns, they thought it aided the ruling class’s oppres- sion of the working class in two ways (Cain and Hunt 1979; Collins 1982). First, law helps preserve private property. Although this might mean that law benefits anyone, including the working class, who owns private prop- erty, in reality the ruling class owns almost all private property, and, in this way, the law benefits this class much more than the working class. Second, law provides legal rights for all and thus creates a façade of justice that obscures working-class oppression and helps the working-class to feel good about their society when in fact they should be angry about their oppression. In this way, law contributes to false consciousness that prevents the working class from realizing its revolutionary potential. Marx and Engels predicted that the working class would eventually revolt and create a true communist society in which everyone was equal and where the state, including the law, would eventually not be needed.

Related to Marx and Engels’ views about law were their views about crime, which their various books and articles viewed in at least three ways. Sometimes they depicted crime as a natural and logical reaction of the work- ing class to the squalid conditions in which they lived under capitalism. Thus Engels (1993 [1845]:48) wrote, “The worker is poor; life has nothing to offer him; he is deprived of virtually all pleasures. . . . What reason has the worker for not stealing? . . . Distress due to poverty gives the worker only the choice of starving slowly, killing himself quickly, or taking what he needs where he finds it—in plain English—stealing.” In other writings, however, Marx and Engels depicted crime as political rebellion by the working class. In this regard, Engels (1993 [1845]:49) once wrote, “Acts of violence commit- ted by the working classes against the bourgeoisie and their henchmen are merely frank and undisguised retaliation for the thefts and treacheries per- petrated by the middle classes against the workers.” Although Engels likened crime to rebellion, he thought that it was unlikely to succeed as rebellion because it is only an individual act and because it leads to arrest and incarceration.

The third way in which Marx and Engels viewed crime by the poor was much more negative, as they sometimes called criminals the lumpenproletariat, by which they meant “the social scum, the positively rot- ting mass” of street criminals (Marx and Engels 1962 [1848]:44). Elsewhere Engels (1926:23) also called the lumpenproletariat “an absolutely venal, and absolutely brazen crew.” It should be obvious from their language that Marx and Engels viewed the lumpenproletariat very negatively, partly because they thought it lacked the class consciousness that was needed for a working-class revolution.