“Change of law depends upon the change of society”

Introduction:

Law inhibits the systemic, radical social change necessary for psychological and societal well-being. It does so through 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.

And for the term ‘society’ it is used to mean a community or a group of persons, living in any region, who are united together by some common bond.

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 first inside its velvet glove. A ‘common bond’ is formed when some uniformity of factors like nearness, nature of the people, habit, custom, inhibition, beliefs, culture, tradition etc. appears. The ‘common bond’ leads to forming social rules or rules of social behavior. The rules are made by members of the society. Disobedience of the rules is followed by punishment in the form of social disapproval. There is no positive penalty associated with the violation of social rules except excommunication or ostracism.

But ‘law’ unlike social rules, enforced by the State, Law, according to Holland is “a rule of external human action enforced by the sovereign political authority”. The objective of law is to bring order in the society with a view to enable its members to progress and develop with some sort of security regarding the future.

From the discussion it can be said or it follows that although custom, usages and traditions indicate a particular social conduct, law or definitive rules are made to ensure the peace and progress of a society.

We all know that the State makes laws. Disobedience of State laws involves a penalty which is enforced by the government through the sovereign power of the State. Whatever is not enforceable is not Law. Laws of the State are applicable to all without exception in identical circumstances.

Many jurists and social scientists in 19th century interpret the nature of Law with social perspectives ‘Ancient Law’ by Henry Maine, is the pioneering work in this respect. According to him, with social advance, law must be framed and changed on the basis social needs. Social scientists like Emile durkheim, L.T. Hobhouse, Max Weber, etc. observed that moral values rather than the settlement of disputes of interests should be the objective of Law. According to Rosco Pound, Law is profoundly related to the following three elements: (a) the legal structure of the society (b) constitutional ideals and principles and (c) legal procedure. The nature and the principle of Law of a democratic society must be different from that of an autocratic system. It has been accepted on all hands that Law is today one of the imperative tools for performing social purposes.

The legal system of a country reflects the rules of society. If there is a change of social rules usually there occurs a change of law. For example, in the middle Ages [1]in Europe, the landlord and the feudal system prevailed. At that time the rights of the peasant was very restricted. In modern times when the feudal system was abolished the rights o the peasant and the citizens were enlarged. Therefore change of social rules leads to change of law.

The converse of the above also applies, i.e. change of law leads to change of the rules of society. Legislation has enlarged the rights of Hindu women regarding inheritance, property rights and marital rights. In these cases the change of law has been accepted by the society. We can conclude that there is dependence between law and social rules and vice versa.

Law is used directly and indirectly to hinder both legal and illegal social change efforts. Electoral challenges, for example, are deflected by state legislatures, which devise unreasonable deadlines, excessive petition requirements, and other hassles to keep third parties off the ballot. As an old anarchist slogan put it, if voting could change the system, it would be illegal.

Activists fare little better in court. Given litigation delays, costs, procedural pitfalls, and judges’ backgrounds, radicals are rarely successful. The doctrines of standing, governmental immunity, and political questions, the substance of conservative legal principles, and the likelihood of reversal upon appeal limit how much even a sympathetic judge can allow activists to win. Since law is created by the powerful rather than the weak, dissident concerns are often simply dismissed as frivolous.

When activists demonstrate peacefully, they often find the law against them. Although it is no longer legitimate to arrest those who advocate change, the benign view of our “First Amendment freedoms” has a fairly short history, and has never been as absolute as many think. In the wake of the Persian Gulf War, and remembering the recent treatment given flag burners, any confidence that the public supports truly free speech is unwarranted. Surveillance, infiltration, and repression of legal activist groups continue.

When activists move on to direct action and civil disobedience, law’s coercive force is clearest. Police infiltration and instigation of violent activities, selective prosecution, and preventive detention add to the likelihood of guilty verdicts and disproportionate sentences. Judges usually prevent defendants from presenting a necessity defense based on their motivations for breaking the law.

The burden of moral proof is heavily on the disobedient to show good faith by nonviolence, meaningful protest and willingness to accept the penalty for their actions. And the basic aim is always the same as regular litigation—to get the challenged law tested by the orderly processes of law.

It is one thing to hold such meaningful protests as restaurant sit-ins, challenging laws that may never be tested in court until they are violated. It is quite another thing to hold indiscriminate demonstrations, such as highway stall-ins, that merely protest grievances in general.

As we look for a new way to live our lives, we constantly look back to remind ourselves of the way things used to be. Western culture as we know it today did not start off as it is now, and it certainly is not going to remain the same for very long. Change has always seemed to be the human beings way of life. We strive to find something different and more effective. As we look onto the Pre Modern[2], Modern, and Post Modern societies we can see that there have been drastic changes throughout the ages. There was once a time when a spear was used to kill a buffalo and rocks were the utensils used to mush plants into a fine powder which would later be used as a remedy for an illness. This society that was once the dominant way of living from 10,000 B.C. to 1500 A.D. is what scientists define as the “Pre Modern” society. These hunters and gatherers would roam the earth using nature as a soul provider for their survival.

The social effects of law adopt a definition of social change as any non-repetitive alteration in the established modes of behavior in society. The qualification ‘non-repetitive’ is important here for the definition recognize that few societies.

The term ‘social change’ is also used to indicate the changes that take place in human interactions and inter-relations. Society is a ‘web-relationship’ and social change obviously means a change in the system of social relationship where a social relationship is understood n terms of social processes and social interactions and social organizations.

Thus, the term, ‘social change’ is used to indicate desirable variations in social institution, social processes and social organization. It includes alterations in the structure and the functions of the society.

Closer analysis of the role of law vis-à-vis social change leads us to distinguish between the direct and the indirect aspects of the role of law.

  1. Law plays an important indirect role in regard to social change by shaping have a direct impact on society. For example: A law setting up a compulsory educational system.
  2. On the other hand, law interacts in many cases indirectly with basic social institutions in a manner constituting a direct relationship between law and social change. For example: A law designed to prohibit polygamy.

Law plays an agent of modernization and social change. It is also as an indicator of the nature of societal complexity and its attendant problems of integration.

Further, the reinforcement of our belief in the age old panchayat system, the abolition of the adorable practices of un touch ability, child marriage, sati dowry, etc are typical illustrations of social change being brought about in the country through law.

Law is an effective medium or agency, instrumental in bringing about social change in the country or in any region in particular. Therefore, we rejuvenate our belief that law has been pivotal in introducing changes in the societal structure and relationships and continue to be so.

An important instrument of change the state employs in the legislative weapon. To start with, it gives expression to the goal towards which the state is moving. India is an outstanding example of the employment of the legislative measures to initiate change. The promulgation was the first step in this direction.

Institutionalized inequality was an accepted principle of Indian caste system; equal justice under equal circumstances was unknown under the traditional Indian set up; equality of opportunity was meaningless under a system where education and occupation was caste-based.
A variety of social legislations are being introduced in independent India to bring about change. They cover legislations for the welfare of the downtrodden in the agrarian sector, to emancipate women, to eradicate untouchability, to facilitate the social and economic development of the tribunal population, etc. All these legislations are slowly but surely making their impact on the Indian social fabric.

As of today, the decisions of the Court are not just being tested on the touch stone of social justice, but indeed they are being cited of as precursors to ‘social rights’. The Court has pro-actively and vigorously taken up to cause of social justice and has gone to the extent of articulating newer social rights such as the right to food, right to health, right to education.

Thus, the march of law is clearly in favor of Supreme Court having performed a pro-active role in social change of the languishing masses. It certainly has acted as a catalyst in the process of social transformation of people wherein the dilution of caste inequalities, protective measures for the weak and vulnerable sections, providing for the dignified existence of those living under unwholesome conditions, etc, are the illustrious examples in this regards.

Conclusion
The law through legislative or administrative responses to new social conditions and ideas, as well as through judicial re-interpretations of constitutions statues or precedents, increasingly not only articulates but sets the course for major social changes.

The law is one of many responses to such change. In certain respects it is the most important, since it represents the authority of the state, and its sanctioning power. The legal response to a given social or technological problem is therefore in itself a major social action which may aggravate a given problem or alleviate and help to solve it.

Bibliography

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BOOKS:

Bachmann, S. (1984-85). Lawyers, law, and social change. New York University Review of Law and Social Change, 13, 1-50.

Freiberg, P. (1991, January). The guru of prevention calls for social change. APA Monitor, pp. 28-29.

Lefcourt, R. (Ed.). (1971). Law against the people: Essays to demystify law, order, and the courts. New York: Vintage.

Melton, G. B., & Saks, M. J. (1986). The law as an instrument of socialization and social structure. In G. B. Melton (Ed.), The law as a behavioral instrument (pp. 235-277). Lincoln: University of Nebraska.

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[1] Period in Western European history that followed the disintegration of the West Roman Empire in the 4th and 5th cent. and lasted into the 15th cent., i.e., into the period of the Renaissance. The ideas and institutions of western civilization derive largely from the turbulent events of the Early Middle Ages and the rebirth of culture in the later years.

[2] Modern history, or the modern era, describes the historical timeline after the middle Ages. Modern history can be further broken down into the early modern period and the late modern period. Contemporary history describes the span of historic events that are immediately relevant to the present time.