Law, Justice, and Society: A Sociolegal Introduction

1. Law, Justice, and Society:A Sociolegal Introduction Chapter 11 The Law and Social Change

2. 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

3. The Law and Social Change Law as a Cause of Social Change • law is mostly reactive • law can be an independent source of change

4. 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

5. 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

6. 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

7. Alcohol use causes crime 4th Amendment rights need protecting Legislatures Courts Civil Rights Acts 18th Amendment (Prohibition) Exclusionary rule The Law and Social Change Typical Role of Law in Social Change Racial segregation is wrong Business should be regulated Social Demands: Legislative Acts/Judicial Decisions: Sherman Anti-trust Act

8. 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”

9. 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

10. 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

11. 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

12. 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

13. 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

14. 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

15. 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

16. 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

17. 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. Traditional • 2. Charismatic • 3. Rational-legal • Supreme Court enjoys all of these

18. 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?

19. The Law and Social Change Judicial Activism • judicial governance: violation of the constitutional separation of powers

20. 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

21. 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"

22. 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"

23. 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