In this essay, the author explores the role a state’s legal framework plays in curtailing social change.
By Sabina Yasmin Rahman, 27th February, 2014
“We must have a look at the society and culture at large in order to find the place of law within the total structure.” — E. Adamson Hoebel (1954)
State as a political entity has managed to sustain a curious pattern of existence. Depending on the level of complementarities [and often contradictions] that the state shares with the plethora of available discourses in and around it — individualism, socialism, secularism, postmodernism, neoliberalism, and post-development — all sheltered under the indisputable fact of democracy, makes it very tempting for us to think of legal innovation as effecting social change. In addition, our highly centralized political system, which functions by appeasing the masses on a daily basis through illusory experiences of access to a decentralized machinery, made increasingly seductive by advanced technology and communication apparatuses, fills us with enormous expectations of achieving near utopian social changes through the medium of law. Here, I would like to state a few reasons as to why one must caution oneself against the reality of law. I contend that it is important to recognize law primarily as an instrument of maintaining status quo rather than a revolutionary transformational force geared towards social change.
Roscoe Pound perceived law as a tool for social engineering (1965 cited in Moore, 1973). Underlying the social engineering view is the assumption that ‘social arrangements are susceptible to conscious human control, and the instrument by means of which this control is to be achieved is the law’, a formulation in which “the law” is a short term for a much more complex aggregation of principles, norms, ideas, rules, practices and the role played by agencies of legislations, administration, adjudication and enforcement, backed by political authority and legitimacy. The complex “law” thus compacted into one term, is abstracted and far removed from the social context in which it exists, and is explained and made sense of as if it were an entity capable of controlling that context (Moore, 1973). But the contrary too offers a credible argument: “it is society that controls law and not the reverse…” (Cochrane, 1971 cited in Moore, 1973). This semantic predicament is partly a result of the multiplicity of referents of the terms “law” and “society”, and yet it does not relieve us from the imperative task that law and the social context in which it operates must be inspected together.
Dennis R. Fox (1991) talks extensively about how the well-meaning efforts by liberal psychologists to reform the law in keeping with values such as dignity, privacy, justice, and equality are often misguided because law exists to serve the status quo. Law inhibits the systemic, radical social change necessary for psychological and societal well-being. It does so, according to Fox, through the use of coercive power, substantive assumptions about human nature, the ideology of law’s legitimacy, a preoccupation with procedure rather than substance, a focus on rational technicality rather than equity, and encouragement for limited, self-defeating legal solutions. He further states that psycholegal scholars should arouse public dissatisfaction with law and assist social movements seeking to overcome legal impediments to social change. Psychologists often advocate legal reform because they believe that psychology and law have similar values, and consequently, that the two can be partners in efforts to improve society. A large literature within psychology, also however, presents an alternative view: we should instead break our mainstream bonds and seek radical social change in order to create a humane, egalitarian, just society. Fox advocates the latter view; he is of the opinion that rather than compatibility between law and psychology, there exists a conflict. He perceives minor reforms too often as hindrances to social transformation rather than reasonable compromises. Analyzed this way, law becomes an inevitable weapon against radical activism instead of being a useful tool. In short, law is more of an opponent than an ally of those seeking fundamental change in the system.
Fox explains that there are six related ways in which law prevents social change. Firstly, law prevents social change in the most obvious manner by heavy-handed employment of coercive power and repressive state apparatuses. Reiterating Lawrence M. Friedman (1984) who pointed out that “Law has its hidden persuaders — its moral basis, its legitimacy — but in the last analysis it has force, too, to back it up. Law carries a powerful stick: the threat of force. This is the fist inside its velvet glove,” Fox emphasizes how law, in obvious or oblique ways, hinders both legal and illegal social change efforts. He draws from the example of electoral challenges that are deflected by state legislatures, which devise unreasonable deadlines, excessive petition requirements, and other hassles to keep third parties off the ballot. He invokes the old anarchist saying ‘if voting could change the system, it would be illegal’.
Given litigation delays, costs, procedural pitfalls, and judges’ backgrounds on the one hand, and the odds of governmental immunity, political questions or justiciability, the conservative interpretation of the constitution, and the likelihood of reversal upon appeal on the other, the possibility of how much even a sympathetic judge can allow radicals or activists to win or be successful is also quite limited. According to Fox, since law is created by the powerful rather than the weak, dissident concerns are often simply dismissed as frivolous. Peaceful demonstrators too might often find the law acting against them. In fact, it would hardly be an exaggeration to state that our fundamental rights have never been as absolute as we may assume them to be. Surveillance, infiltration, and repression of legal activist groups continue up till this date in different parts of our own country, and there would be no dearth of instances to cite from to prove that the law has even denied to people, their utmost fundamental human rights to life in the most ruthless fashion (AFSPA, for instance). Besides the harassment of activists in the hands of the government, there are corporations which often file slander and other lawsuits against people who use letters to newspapers, public statements, and similar methods to condemn corporate projects such as toxic waste dumps. Although most of these suits are legally “unsuccessful” in that free speech rights are upheld and the activist pays no damages, the suits serve their purposes of transforming political debates into private disputes, often causing the abandonment of public advocacy.
The second way law opposes social change, according to Fox, is through its assumptions about human behaviour as being inherently lawless. June Tapp while defining legal socialization (LS) dispels the myth of humankind’s inherent lawlessness. According to Tapp, LS involves a life-long experiential and interactive process of mapping the continuity of one’s legal worlds in multiple rule- or compliance-systems from home to school to community to government. The myth of inherent lawlessness: that criminals are born and human essentially law-breaking creatures, she contends, ignores the fact that “the search for rules and rule dependency appears early in human life and is visible across all activity from games to government and language to law…In essence, no community is truly lawless,” and adherence to such a myth perpetuates a law-and-order mentality. The flip side of the lawlessness myth is the crippling legality myth underlying which, is the assumption that legality and its correlates of justice, obligation, and responsibility reside only in the law. If such a view is allowed to perpetuate over time, then the emergence of an authoritarian repressive law is more likely, since both myths lead us to see calls for social change as precarious rather than liberating (Tapp, 1974; 1977 cited in Fox, 1991). Thirdly, as an inevitable consequence of the second, law inhibits social change through the hegemonized and internalized awareness of the belief that law is ‘legitimate’, and that legal authorities have the right to make demands. According to Friedman, such a belief “prevents anarchy and induces people to obey orders and commands without the use of force.” Legitimacy is, therefore as Fox observes, an absolute prerequisite for the political system to continue in its current shape and form, since the consent of the governed depends upon the efficacy of such beliefs and fictions, including the fiction that law is sacrosanct.
Thus, conforming to the assumption of law’s legitimacy, at its best, may be preventing changes that could enhance the well-being of the population, and at worst, it may be silently endorsing unjust social practices, reinstating and consolidating dominant values through the façade of value-free scientific statements that provide an asocial image of the human being — essentially autonomous and considerably removed from socio-historical circumstances. The fourth very significant way in which law could be seen as curbing social change is by the way it reduces appeals for substantive justice by primarily emphasizing instead on procedural justice. It refuses to acknowledge realities associated with the dreariness of procedures fairness that may delay or deny real justice. For instance, a government leader might find it much easier to create circumstances of ‘perceived fairness’ than provide for people’s needs and tackle the threats posing the society at any given point in time (Tyler, 1990 cited in Fox, 1991). The dispassionate nature of legal procedures and their preoccupation with neutrality often pose the potential danger of giving rise to false consciousness, and one must continuously strive to challenge such misplaced values in favour of something more substantive.
Fifthly, the insistence that “rule of law” is superior to non-law by virtue of its so called objectivity, rational technicality and rigidity, is a farcical myth. It has been ingrained in our thought processes that law is better, even if the application of general principle to a particular case brings unfair results, because the only alternative to law, we are made to believe, is ‘chaos’. The opposite of legal technicality as Fox points out, however, is not chaos, but equity. He says, “Under equity principles, legal technicalities can be set aside to prevent injustice. As might be expected, although equity’s use as a discretionary corrective is accepted in theory in most legal systems, in practice judges often dismiss it precisely because equity implies that the law is inadequate”. As a consequence, therefore, the usage of equity has been limited to narrow areas of law and to relatively ineffective remedies. Lastly, law’s opposition towards social change has to do with the self-defeating character of legal solutions despite their promising appeal. Reform sounds promising and more desirable because it assumes that law can be transformed so significantly that it will operate at a higher principled level. Fox concludes however that it is doubtful because the reasons for which law exists come in conflict with principled levels of reasoning and ethics. Law exists to maintain rather than change the status quo, to protect some sections at the expense of others, to control rather than unfetter.
Furthermore, even when reform efforts succeed, they do so only at the cost of unforeseeable “side-effects” that complicate other problems or lead to long-term failure. A radical structural change toward equity is a near impossibility under the narrow scope of law that defines people and spaces on the basis of legitimate powers, roles, and functions. A systems perspective must acknowledge that social problems are interconnected rather than isolated, and change in the legitimacy or access to power of one group of people or structures, would inevitably pave way to change in others, completely infuriating the ones who lose their privileges to the once who never had. Hence, the apparent reforms that society has seen, have not been without conflicts, and yet they come into existence only after a careful and exhaustive analyses of their impact on the status quo. In fact, the very success of legal solutions makes things worse, because legal solutions reduce people’s ability and motivation to work together with others on community solutions to social problems.
According to Fox, legal reforms may work, but only by forcing complex human interactions into an artificial framework, creating dependency on legal authorities. At this point, one might cite the example of Diversity Training Approach that organizations are increasingly using today to address the realities and challenges of diverse workforce and society. In the Legal Compliance Approach (LC) Model, based on legal theory, civil rights law, and human resource development strategies, terms like “affirmative action”, “equal opportunity” and “qualified minorities” are used. The major concerns are monitoring the recruitment, hiring, and promotional procedures affecting women, and people of colour so as to increase representation in the organization and comply with anti-discriminatory laws. From the LC perspective, the state of race relations is “colourblindness”, a state in which “people are just people” and differences are unmarked, rather not remarked upon. This kind of colourblindness poses a serious contradiction. As pointed out by DeRosa, Affirmative Action is an explicitly gender and/colour-conscious policy as it requires organizations to notice information about people relative to race, ethnicity and gender. This contradiction actually leaves people in a state of paradox of being colour-conscious in an effort to become colour-blind. The approach thus, leaves the larger question of negative values that are socially assigned to these differences resulting in unequal distribution of resources, access, power and respect on the basis of such categories. In fact, assimilation to the dominant group’s worldview is also seen as an appropriate and desired goal of diversity training efforts. McBride argued that law “has an alienating or even a repressive effect…, especially on those who occupy subordinate social roles.” Thus, the space, power, and voice are allowed to them, as it were, to contain their rebellion against dominant power. This can be seen as subversion created by the dominant order to consolidate their power, and overthrow subversive threats by marginalized groups.
However, it is societal contradictions and antagonisms that contribute to social change, and under particular circumstances, to revolutions as well. Law in itself can only maintain status quo and control the tendency towards radical changes caused by unrestrained resistance to monopoly and misuse of power. As noted by Black, “…in theory, law makes trustworthiness unnecessary, even obsolete. When law is fully in command, morality itself loses relevance. Right and wrong become a specialty of professionals such as lawyers, police, and judges.” Law tries to project that we are not capable of goodness unless we are forced to be good, but every time a society breaks the law and turns towards social action for the cause of equality, justice and liberty, we are forced to accept law merely as yet another construct, a linguistic and semantic arrangement of signs and symbols which becomes futile the moment it fails to further the cause of humankind.
- DeRosa, Patti (2001) Social Change or Status Quo: Approaches to Diversity Training, ChangeWorks Consulting.
- Fox, Dennis R., (1991) Law against Social Change, American Psychological Association, San Francisco
- Moore, Sally F., (1973) Law and Social Change: the Semi-Autonomous Social Field as an Appropriate Subject of Study, Law and Society Review, Vol. 7(4):719-746